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PRACTICE  SERIES 


SUNDERLAND'S 
CASES  ON  PROCEDURE 

Sunderland's   Cases   on   Trial  Practice. 


Sunderland's  Cases  on   Code  Pleading. 

Sunderland's   Cases   on 

Common  Law  Pleading. 

Sunderland's  Cases  on  Equity 

Pleading  and  Practice. 

Sunderland's   Cases   on 

Criminal   Procedure. 


Sunderland's  Cases  on 

Appellate   Practice. 

Sunderland's  Cases  on  Evidence. 


CALLAGHAN  &  COMPANY 

CHICAGO 


CASES  ON  PROC^^^M 


ANNOTATED 


TRIAL  PRACTICE 


By  EDSON  R.  SUNDERLAND 

PBOFESSOR  OF  LAW  IN  THE  LAW  DEPARTMENT 
OF  THE  UNIVERSITY  OF  MICHIGAN. 


CHICAPO 

CALLAGHAN  AND  COMPANY 

1912 


*  .*  .  •  * 


T 


COPYEIGHT  1912 

BY 

CALLAGHAN  &  COMPANY 


CASES  ON  PROCEDURE. 

The  Series. 

The  present  volume,  on  Trial  Practice,  is  the  first  of  a 
series  of  case-books  which  the  editor  hopes  to  prepare  for 
the  use  of  law  students,  covering  the  broad  subject  of  Pro- 
cedure. The  plan  contemplates  separate  volumes  on  the 
following  special  topics: — Trial  Practice,  Code  Pleading, 
Common  Law  Pleading,  Equity  Pleading  and  Practice, 
Criminal  Procedure,  Evidence,  and  Appellate  Practice. 

These  books  are  to  be  prepared  as  separate  and  inde- 
pendent treatments  of  the  subjects  to  which  they  relate. 
Each  branch  of  procedure  has  its  o^vn  subject-matter  and 
its  independent  problems,  and  no  advantage  would  result 
from  erasing  the  lines  which  mark  its  boundaries.  But 
while  this  is  so,  it  is  nevertheless  important  to  observe  that 
an  adequate  conception  of  any  one  of  these  branches  can 
be  formed  only  by  keeping  constantly  in  mind  the  scope 
and  function  of  procedure  as  a  whole.  In  a  very  true  and 
fundamental  sense  procedure  is  single  and  indivisible.  Its 
aim  is  to  furnish  a  mechanism  for  litigation,  to  supply  a 
means  and  method  for  applying  the  law  in  the  solution  of 
legal  controversies.  One  purpose  runs  through  it  all. 
Pleadings  are  drawn  to  present  issues  for  trial;  trials  are 
had  to  determine  issues  raised  by  the  pleadings.  What  the 
trial  demands  the  pleadings  must  give.  One  is  the  counter- 
part of  the  other.  Only  in  view  of  the  trial  are  the  plead- 
ings intelligible ;  only  by  reference  to  the  pleadings  can  the 
scope  and  course  of  the  trial  l)e  determined.  And  as  for 
the  relation  between  procedure  in  nisi  priiis  and  in  appellate 
courts,  the  former  is  moulded  to  meet  tlie  requirements  of 
the  latter  and  the  latter  is  leased  strictly  upon  the  founda- 
tion laid  by  the  former.  Thus  ))leading,  in  its  various  forms, 
trial  practice,  and  apjiellate  practice  may  be  correctly 
viewed  as  component  parts  of  a  highly  developed  system 
designed  to  enable  parties  to  successfully  resort  to  courts 
of  law  for  the  redress  of  grievan:^os.  Together  they  furnish 
a  complete  mechanism  for  the  administration  of  the  law. 

(Hi) 


740019 


iv 


•  •3Pi5i0^4^)D'ijCTORY  Note. 


•/•'■in  the  present  series  of  easJQ^bo.oks  upon  procedure  it 
is  .proposecljto:  deyeloj>  the  snbj&c't,  so  far  as  possible,  in 
this;  B'lloa'^/'dajj  :CohipK4}Vn§i,Y^  way.  Each  branch  will  be 
treated  sejiarately,  and  its  technical  details  will  be  fully 
and  carefully  exhibited,  but  at  the  same  time  it  will  be  the 
definite  aim  to  make  each  volume  disclose  its  place  and 
])ur])ose  as  an  integral  part  of  an  articulated  system.  In 
this  way,  if  at  all,  may  procedure  be  shown  in  its  true 
character,  as  a  logically  developed  and  practically  efficient 
means  for  accomplishing  a  very  important  end,  instead 
of  a  mass  of  arbitrary  and  technical  rules.  No  method 
Arill  work  well  in  the  hands  of  those  who  lack  an  adequate 
perspective  and  who  fail  to  take  a  comprehensive  view  of 
its  scope  and  purpose.  If  the  law  schools  are  to  turn  out 
men  able  to  meet  the  exacting  demands  of  a  critical  and 
sorely-tried  public,  they  must  spare  no  effort  to  develop 
in  their  students  a  thorough,  rational  and  enlightened  ap- 
preciation of  the  true  function  and  the  basic  principles  of 
procedure.  The  series  here  proposed  is  an  effort  to  sup- 
ply material  to  meet  this  need. 

Edson  R.  Sunderland. 
University  of  Michigan. 


PREFACE. 


The  teaching  of  Practice  has  been  neglected  to  a  surpris- 
ing degree  in  American  law  schools.  The  subject  is  one 
of  immense  importance  to  the  profession,  as  all  lavN^yers 
understand.  And  yet,  in  fitting  men  to  practice  law  the 
schools  have  seldom  accorded  it  a  prominent  place  in  the 
curriculum.  It  is  probable  that  in  no  profession  do  the 
technicalities  of  practice  lAaj  so  large  a  part  as  in  the 
law.  Indeed,  court  procedure  has  really  become  a  public 
problem  in  which  the  laity,  who  suffer  from  its  abuses, 
are  beginning  to  take  a  vigorous  and  aggressive  interest. 
A  subject  of  such  vital  concern  to  both  the  public  and  the 
profession  should  be  worthy  of  a  careful  and  discriminat- 
ing study. 

For  many  years  the  Law  Department  of  the  University 
of  Michigan  has  offered  an  exceptionally  large  amount 
of  work  in  Practice,  and  this  has  tended  to  increase  from 
year  to  year  as  the  methods  have  become  better  systema- 
tized. This  work  has  consisted  of  two  branches,  class- 
room work  in  the  principles  of  Practice  and  a  practical 
application  of  these  principles  in  the  Practice  Court.  The 
former  has  proved  particularly  troublesome  because  there 
were  no  suitable  books  available  for  classroom  use.  Vari- 
ous general  texts  on  Practice  have  been  employed,  and  re- 
cently the  work  has  been  conducted  as  a  research  course, 
questions  being  prepared  and  handed  to  the  students  to  be 
answered  by  reference  to  the  statutes,  digests,  reports  and 
text-books  in  the  library.  But  neither  the  text-book  nor 
the  library  method  proved  entirely  satisfactor}^  Eacli 
tended  to  emphasize  the  rules  of  practice  as  such,  instead 
of  developing  the  reasons  underlying  them.  In  a  law  school 
largely  devoted  to  the  case  system  of  instruction,  it  finally 
became  clear  that  a  case-book  in  Practice  was  an  urgent 
necessity.    This  book  has  been  prepared  to  meet  that  need. 

A  comparative  study  of  the  decisions  on  Practice  in  the 

(V) 


.'rJifferent  States  will  readily' tJispose  of  the  commonly  ac- 
'ccj)4;iid  fallac.v.tlmt.Ri^aGtica  is'-.jJrimarily  a  local  subject, 
to'fbe^istLVpi'S!:^^}^  taU^J^t*'^?,?'  matter  of  local  education  in 
preparation  for  admission  to  a  local  bar.  In  truth,  the 
principles  of  trial  practice  are  largely  of  general  applica- 
tion. The  variations  found  in  different  jurisdictions  are 
most  of  them  on  minor  points.  The  major  problems,  in- 
volving the  correlation  of  functions  between  judge,  jury, 
attorney,  party  and  witness,  are  always  the  same,  wher- 
ever the  jury  system  is  in  use.  And  the  solution  of  these 
problems  of  trial  practice  has  followed  closely  parallel 
lines  in  the  different  American  jurisdictions.  In  every 
instance  there  were  the  same  elements  to  work  with,  the 
same  results  to  be  reached,  and  the  previous  experience 
of  other  courts  was  at  the  disposal  of  each.  Logic  and 
experiment  led  along  the  line  of  least  resistance,  and  re- 
sulted in  the  building  up  of  a  systematic  and  well-ordered 
body  of  principles  which,  if  administered  with  intelligence 
and  conscience,  are,  in  the  main,  admirably  adapted  to  meet 
the  requirements  of  modern  courts  of  justice. 

The  present  volume  is  intended  to  develop  and  disclose 
the  rational  basis  for  the  main  principles  of  practice  em- 
ployed in  the  trial  of  civil  actions  at  law.  Recourse  has 
l)een  had  to  the  whole  body  of  American  case  law,  and  the 
choice  of  cases  has  been  determined  by  the  clearness  with 
which  the  court  has  shown  a  logical  justification  for  the  de- 
cision made.  By  this  means  it  is  hoped  that  the  book  will 
lielp  the  student  to  analyze  and  understand  the  methods 
l)y  which  courts  solve  problems  of  practice,  to  appreciate 
the  comparative  value,  importance  and  bearing  of  the  dif- 
ferent elements  involved,  and  to  form  sound  notions  of  the 
underlying  ])rinciples  goveniing  the  complex  field  of  mod- 
ern court  procedure. 

The  cases  have  been  very  freely  edited,  and  everything 
not  gei-mane  to  the  subject  for  which  the  case  was  chosen 
has  been  omitted.  Questions  of  procedure  are  usually 
raised  in  connection  with  questions  relating  to  the  sub- 
stantive law,  so  that  few  opinions  can  be  advantageously 
used  in  toto  in  a  work  of  this  kind.  It  is  believed,  how- 
ever, tliat  the  facts  of  the  various  cases  have  never  been 


Preface.  ^** 

cut  so  far  as  to  impair  their  value.  The  great  advantage 
of  cases  over  text-books  as  educational  instruments  lies  in 
the  presentation  of  facts  out  of  which  the  court,  by  a  lo.gi- 
cal  process  of  demonstration  which  it  develops  and  exhibits 
before  the  reader,  is  able  to  derive  its  legal  conclusions. 
Cases  with  facts  eliminated  are  usually  of  little  more  value 
than  the  abstract  discussions  of  the  text-books,  and  great 
care  has  therefore  been  taken  to  preserve  them  in  every  in- 
stance where  the  legal  principles  involved  depend  in  any 
material  degree  upon  the  nature  of  the  facts. 

While  Evidence  is  essentially  a  branch  of  Trial  Prac- 
tice, it  has  been  entirely  excluded  from  the  present  volume, 
for  the  obvious  reason  that  it  is  everywhere  recognized 
as  of  sufficient  importance  and  difficulty  to  warrant  an  in- 
dependent treatment. 

Edson  R.  Sunderland. 
University  of  Michigan, 
Ann  Arbor, 

September,  1912. 


Table  of  Contents. 


CHAPTER  I. 

WRITS  OF  SUMMONS. 
Section  Page 

1.  What  Is  ProcevSs? 

Brooks  V.  Nevada  Nickel  Syndicate  (1898)  24  Nev.  311 1 

2.  Designation  of  Court  and  Parties. 

Eggleston  v.  Wattawa  (1902)  117  la.  676 2 

Lyman  v.  Milton  (1872)  44  Cal.  632 4 

3.  Designation  of  Time  fob  Appearance. 

Lawyer  Land  Co.  v.  Steel   (1906)   41  Wash.  411 7 

4.  Description  of  Cause  of  Action. 

Bewick  v.  Muir  (1890)   83  Cal.  368 9 

5.  Signature,  Teste  and  Seal. 

Lowe  V.  Morris  ( 18.53 )  13  Ga.  147 11 

Choate  v.  Spencer  ( 1S93 )  13  Mont.  127 13 

Ambler  V.  Leach  (1879)  15  W.  Va.  677 17 

6.  Indorsement  of  Amount  Claimed. 

Elmen  v.  C.  B.  &  Q.  R.  R.  Co.  (1905)  75  Neb.  37 24 

7.  Alias  Writs. 

Parsons  V.  Hill  (1900)  15  App.  Cas.  D.  C.  532 28 


CHAPTER  II. 

SERVICE  AND  RETURN  OF  SUMMONS. 

Personal  Service. 

McKenzie  V.  Boynton  (1910)   19  N.  D.  531 38 

Krotter  &  Co.  v.  Norton  (1909)  84  Neb.  137 39 

Boggs  V.  Inter-American  Mining  and  Smelting  Co.  (1907)  105 

Md.  371 41 

Substituted  Service. 

Barwick  v.  Rouse  ( 1907 )  53  Fla.  645 44 

Constructive  Service. 

Harness  v.  Cravens  (1894)   126  Mo.  233 46 

D'Autremont  v.  Anderson  Iron  Co.  (1908)  104  Minn.  165 52 

Nelson  v.  C.  B.  &  Q.  R.  R.  Co.  (1906)  225  111.  197 59 

Kennedy  v.  Lamb  (1905)  182  N.  Y.  228 64 

Place  of  Service. 

Wallace  v.  United  Electric  Co.  (1905)  211  Pa.  St.  473 69 

Barry  v.  Wachosky  (1899)  57  Neb.  535 73 

(ix) 


X  TABLE  OF  CONTENTS. 

Section  Page 

5.  Return  of  Service. 

Jones  V.  Bibb  Brick  Co.   (1904)  120  Ga.  321 76 

Smoot  V.  Judd  ( 1904 )  184  Mo.  508 79 

Crosby  v.  Farmer  (1888)  39  Minn.  305 87 

6.  Privilege  from  Servue. 

Parker  v.  Marco  (1893)  136  N.  Y.  585 91 

Greenleaf  v.  People's  Bank  ( 1903 )  133  N.  C.  292 95 


CHAPTER  III. 

APPEARANCE. 

1.  What  Constitutes  a  Special  Appearance? 

Belknap  v.  Charlton  (1893)   25  Ore.  41 101 

Fulton  V.  Ramsey  (1910)  67  W.  Va.  321 105 

2.  Manner  of  Making  Special  Appearance. 

Wall  V.  Chesapeake  &  Ohio  Ry.  Co.  (1899)  37  C.  C.  A.  129 112 

Greer  v.  Young  (1887)  120  111.  184 116 

3.  Waiver  of  Special  Appearance. 

Neosho  Valley  Investment  Co.  v.  Cornell  (1899)  60  Kan.  282.  123 

Louisville  Home  Tel.  Co.  v.  Heeler's  Adm'x  (1907)  125  Ky.  366  126 

Linton  v.  Heye   (1903)   69  Neb.  450 130 

Wabash  Western  Ry.  Co.  v.  Brow  (1896)  164  U.  S.  271 132 

Fisher,  Sons  &  Co.  v.  Crowley  (1906)   57  W.  Va.  312 135 

Corbett  v.  Physicians'  Casualty  Ass'n  (1908)  135  Wis.  505 140 

4.  Withdrawal  of  Appearance. 

Eldred  v.  Bank  (1873)  17  Wall.  (U.  S.)  545 142 

Ins.  Trust  &  Agency  v.  Failing  ( 1903 )  66  Kan.  336 144 

6.     Authority  of  Attorney  to  Appear. 

Hamilton  v.  Wright  (186S)   37  New  York  502 146 

Danville,  etc.,  R.  R.  Co.  v.  Rhodes  (1897)  180  Pa.  St.  157....  149 


CHAPTER  IV. 

CONTINUANCE. 

1.  StmPBTSE  at  the  Trial. 

Pittsburg,  Cincinnati,  Chicago  &  St.  L.  Ry.  Co.  v.  Grom  (1911) 

142  Ky.  51 152 

Peterson  v.  Metropolitan  St.  Ry.  Co.  (1908)  211  Mo.  498 155 

Rahles  v.  J.  Thompson  &  Sons  Mfg.  Co.  (1909)  137  Wis.  506. .  158 

2.  Absence  of  Witness. 

Campbell  v.  Dreher  (1908)  33  Ky.  L.  R.  444 160 

Teirapin  v.  Barker  (1910)  26  Okla.  93 161 

Bean  v.  Missoula  Lumber  Co.  (1909)  40  Mont.  31 163 

Hartford  Fire  Ins.  Co.  v.  Hammond   (1907)   41  Colo.  323 165 

Brown  v.  Abilene  Nat.  Bank   (1888)  70  Tex.  250 166 

3.  Absence  of  Attornkv. 

Cicerello  t.  Chesapeake  &  Ohio  Ry.  Co.  (1909)  65  W.  Va.  439.     167 
Rankin  r.  Caldwell  (1908)  15  Ida.  625 171 


TABLE  OF  CONTENTS.  xl 

Section  Page 

4.    Absence  of  Pakty. 

Jeffe  V.  Lilienthal  (1894)  101  Cal.  175 175 

B.      WlTHDEAWAL,  OF  JiTEOE. 

Usborn  v.  Stephenson  (1899)  36  Ore.  328 177 

6.    Tebms. 

Maund  v.  Loeb   (1888)   87  Ala.  374 180 


CHAPTER  V. 

THE  JURY. 

1.  Right  to  a  Jury  Trial. 

Lee  V.  Conran   (1908)   213  Mo.  404 181 

2.  Waiver  of  Jury. 

Schumacher  v.  Crane-Churchill  Co.  (1902)  66  Neb.  440 184 

3.  Objections  to  the  Panel. 

Louisville,  Henderson  &  St.  Louis  Ry.  Co.  v.  Schwab   (1907) 

127  Ky.  82 188 

Ullman  v.  State   (1905)   124  Wis.  602 192 

4.  Qualifications  of  Jurors. 

Kumli  V.  Southern  Pacific  Co.  ( 1892 )  21  Ore.  505 197 

Theobald  v.  St.  Louis  Transit  Co.  (1905)  191  Mo.  395 203 

Wilson  V.  Wapello  County  (1905)  129  la.  77 208 

Searle  v.  Roman  Catholic  Bishop  of  Springfield    (1909)    203 

Mass.  493   211 

5.  Questioning  the  Jury. 

GofE  v.  Kokomo  Brass  Works  (1908)  43  Ind.  App.  642 215 

6.  Method  of  Empanelling. 

Pointer  v.  United  States  (1894)  151  U.  S.  396 220 

7.  Challenges. 

Coughlin  v.  People    (1893)    144  HI.   140 225 

State  v.  Myers   (1906)  198  Mo.  225 227 

McDonald  v.  State   (1909)    172  Ind.  393 230 

State  V.  Cady  (1888)  80  Me.  413 236 

8.  Discharge  of  Juror. 

State  V.  Davis  (1888)  31  W.  Va.  390 238 

9.  Oath  Administered. 

Wells  V.  Smith  (1901)  49  W.  Va.  78 241 


CHAPTER  VI. 

THE  RIGHT  TO  OPEN  AND  CLOSE. 

Johnson  v.  Josephs  ( 1884 )  75  Me.  544 243 

Buzzell  v.  Snell  ( 1852 )  25  N.  H.  474 245 

Lake  Ontario  Nat.  Bank  v.  Judson  (1890)  122  N.  Y.  278 250 

Gardner  v.  Meeker  (1897)   169  111.  40 253 


3^11  TABLE  OF  CX)NTENTS. 

Section  Page 
CHAPTER  VII. 

OPENING  STATEMENT  OF  COUNSEL. 

Scrlpps  V.  Reilly  (1877)   35  Mich.  371 255 

Fosdiclc  V.  Van  Arsdale  ( 1889 )  74  Mich.  302 262 

San  Miguel  Mining  Co.  v.  Bonner  (1905)  33  Colo.  207 263 

Pietsch  V.  Pietsch   (1910)  245  111.  454 266 

Lindley  r.  Atchison,  T.  &  S.  F.  Rd.  Co.  (1891)  47  Kan.  432. .  270 

Redding  v.  Puget  Sound  Iron,  etc.,  Works  (1905)  36  Wash.  642  272 


CHAPTER  VIII. 

JUDGMENT  ON  THE  PLEADINGS. 

Cobb  V.  Wm.  Kenefick  Company  (1909)  23  Okla.  440 275 

Hoover  v.  Horn  ( 1909 )  45  Colo.  288 277 

Sternberg  v.  Levy  (1901)  159  Mo.  617 279 


CHAPTER  IX. 

DEMURRER  TO  THE  EVIDENCE. 

Copeland  v.  New  England  Ins.  Co.  (1839)  22  Pick.  (Mass.)  135  281 
Galveston,  Harrisburg  &  San  Antonio  Ry.  Co.  v.  Templeton 

( 1894 )  87  Tex.  42 288 

Fritz  V.  Clark  ( 1881 )   80  Ind.  591 290 

Bennett  v.  Perkins  (1900)  47  W.  Va.  425 293 

Hopkins  v.  Railroad  (1895)   96  Tenn.  409 296 


CHAPTER  X. 

DISMISSAL,  NON-SUIT  AND  DIRECTED  VERDICT. 

1.  Dismissal. 

(a)  Circumstances  Under  Which  Plaintiff  May  Dismiss. 

Bertschy  v.  McLeod   (1873)   32  Wis.  205 302 

Carlton  v.  Darcy  (1878)  75  N.  Y.  375 305 

(b)  Time  When  Plaintiff  May  Dismiss. 

Carpenter  &  Sons  Company  v.  New  York,  New  Haven  &  Hart- 
ford R.  R.  Co.  (1903)  184  Mass.  98 307 

Oppenheimer  v.  Elmore  ( 1899 )  109  la.  196 310 

Ashmead  V.  Ashmead  (1880)  23  Kan.  262 313 

(c)  Effect  of  Dismissal. 

Southern  Ry.  Co.  v.  Miller  (1909)   217  U.  S.  209 314 

Francisco  v.  Chicago  &  Alton  Rd.  Co.  (1906)  79  C.  C.  A.  292. .     315 

(d)  Form  of  Motion. 

Ferguson  v.  Ingle  ( 1900)  38  Ore.  43 321 

2.  NoN-SriT. 

Carroll  v.  Grande  Ronde  Elec.  Co.   (1907)   49  Ore.  477 322 

Smalley  v.  Rio  Grande  Western  Ry.  Co.  (1908)  34  Utah  423. .     325 
Bopp  v.  N.  Y.  Elec.  Vehicle  Transp.'Co.  (1903)  177  N.  Y.  33..     334 


TABLE  OF  CONTENTS.  xiii 

Section  Page 

■J.     DiKECTKD  Verdict. 

(a)  Wh('7i  Proper. 

Meyer  v.  Houck   (1892)  85  la.  319 338 

McDonald  v.  Metropolitan  St.  Ry.  Co.  (1901)   167  N.  Y.  66..     343 
Giles  V.  Giles   (1910)   204  Mass.  383 346 

(b)  Effect  of  Requests  by  Both  Parties. 

Empire  State  Cattle  Co.  v.  Atch.,  T.  &  S.  F.  Ry.  Co.   (1907) 

210  U.  S.  1 348 

Wolf  V.  Chicago  Sign  Printing  Co.   (1908)   233  111.  501 352 

(c)  When  Motion  to  Be  Made. 

Rainger  v.  Boston  Mut.  Life  Ass'n  (1897)  167  Mass.  109 356 

(d)  Power  of  Court  to  Compel  Verdict. 

Cahill  V.  Chicago,  M.  &  St.  P.  Ry.  Co.  (1896)  20  C.  C.  A.  184. .     358 


CHAPTER  XL 

INSTRUCTING  THE  JURY. 

1.  Questions  of  Law  axd  Fact. 

(a)  General  Theory  of  Division  of  Functions  Between  Court  and 

Jury. 

State  V.  Wright   (1865)   53  Me.  328 360 

(b)  Qtiestions  of  Law  Not  to  Be  Submitted  to  the  Jury. 

Aaron  v.  Missouri  &  Kan.  Teleph.  Co.  (1911)  84  Kan.  117 369 

Baker  v.  Summers  ( 1903 )  201  111.  52 372 

Atch.,  Top.  &  S.  F.  Ry.  Co.  v.  Woodson  (1909)  79  Kan.  567. .  373 

Mitchell  V.  Town  of  Fond  du  Lac  (1871)  61  111.  174 375 

Winchell  v.  Town  of  Camillus  (1905)  109  N.  Y.  App.  Div.  341  376 

Diddle  v.  Continental  Casualty  Co.  (1909)  65  W.  Va.  170 378 

(c)  Questions  of  Fact  Not  to  Be  Taken  from  the  Jury. 

Standard  Cotton  Mills  v.  Cheatham  (1906)  125  Ga.  649 380 

Illinois  Cent.  R.  R.  Co.  v.  Johnson  (1906)  221  111.  42 381 

Buttram  v.  .lackson  (1861)  32  Ga.  409 385 

(d)  Comments  by  the  Court  on  the  Weight  of  the  Evidence. 

New  York  Firemen  Ins.  Co.  v.  Walden  (1815)   12  Johns  (N. 

Y. )  513 387 

St.  Louis,  Iron  Mountain  &  Southern  Ry.  v.  Vickers   (1887) 

122  U    S    360 392 

Kleutsch  V.  Security  Mutual  Life  Ins.  Co.  (1904)  72  Neb.  75. .  394 

State  V.  Dick  (1864)  60  N.  C.  440 398 

Commonwealth  V.  Barry  (1864)  9  Allen  (Mass.)  276 400 

2.  Scope  of  Instructioxs. 

(a)  Relation  to  Pleadings  and  Evidence. 

Jacksonville,  Tampa  &  Key  West  Ry.  Co.  r,  Neff  (1891)   28 

Fla.  373 404 

Hanson  v.  Kline  (1907)  136  la.  101 408 

Owensboro  Wagon  Co.  v.  Boling  (1908)  32  Ky.  L.  R.  816 411 

Douda  V.  Chicago,  R.  I.  &  P.  Ry.  Co.  (1909)   141  la.  82 413 

Buyken  v.  Lewis  Construction  Co.  (1909)  51  Wash.  627 415 

Karrer  v.  City  of  Detroit  ( 1905 )  142  Mich.  331 417 

(b)  Emphasis  and  Disregard  of  Portions  of  Evidence. 

Trustees  of  Schools  v.  Yoch  (1908)  133  111.  App.  32 418 

Taubert  v.  Taubert  ( 1908 )  103  Minn.  247 420 

McBride  v.  Des  Moines  City  Ry.  Co.  (1907)  134  la.  398 422 


xiv  TABLE  OF  CONTENTS. 

Section  Pago 

Seaboard  &  Roanoke  R.  R.  Co.  v.  Joyner's  Adm'r  (1895)   92 

Va.  354 425 

Boyce  v.  Chicago  &  Alton  Rd.  Co.  (1906)  120  Mo.  App.  168. .  426 

Life  Ins.  Co.  of  Va.  v.  Hairston  (1908)  108  Va.  832 428 

3.  Form  of  Instructions. 

Murphy  v.  Central  of  Georgia  Ry.  Co.  (1910)  135  Ga.  194 430 

Parker  v.  National  Mut.  Bldg.  &  Loan  Ass'n    (1904)   55  W. 

Va.  134 432 

West  Kentucky  Coal  Co.  v.  Davis  (1910)   138  Ky.  667 434 

State  V.  Legg  (1906)  59  W.  Va.  315 439 

City  of  Chicago  v.  Moore  (1891)  139  111.  201 441 

Klofski  V.  Railroad   Supply  Co.    (1908)    235  111.  146 444 

McDivitt  V.  Des  Moines  City  Ry.  Co.  (1909)  141  la.  689 446 

4.  Requests  fob  Instructions. 

Central  Railroad  v.  Harris  ( 1886 )  76  Ga.  501 449 

Morgan  v.  Mulhall    (1908)    214  Mo.  451 452 

Chicago  City  Ry.  Co.  v.  Sandusky  (1902)  198  111.  400 455 

Chesapeake  &  Ohio  Ry.  Co.  v.  Stock  (1905)  104  Va.  97 459 

5.  Cautionary  Instructions. 

(a)  Admissions. 

Scurlock  V.  City  of  Boone  (1909)  142  la.  580 461 

Kaufman  V.  Maier  (1892)   94  Cal.  269 463 

(b)  Burden  of  Proof. 

Crabtree  v.  Reed  (1869)  50  111.  206 466 

Altschuler  v.  Coburn  (1894)  38  Neb.  881 467 

(c)  Positive  and  Negative  Testimony. 

In  re  Estate  of  Wharton  (1907)  132  la.  714 468 

McLean  v.  Erie  Rd.  Co.  (1903)  69  N.  J.  L.  57 469 

(d)  Credibility  of  Witnesses. 

Cline  V.  Lindsey   (1886)   110  Ind.  337 470 

Gustafson  v.  Seattle  Traction  Co.  (1902)  28  Wash.  227 474 

Higgins  V.  Wren  (1900)   79  Minn.  462 476 

Fifer  v.  Ritter  (1902)  159  Ind.  8 478 

(e)  Falsus  in  Vno,  Falsus  in  Omnibus. 

Chicago  &  Alton  Rd.  Co.  v.  Kelly  (1904)   210  111.  449 479 

Cameron  v.  Wentworth   (1899)    23  Mont.  70 482 

Ward  V.  Brown  (1903)   53  W.  Va.  227 486 


CHAPTER  Xn. 

ARGUMENT  AND  CONDUCT  OF  COUNSEL. 

Baldwin's  Appeal  from  Probate  (1876)  44  Conn.  37 488 

Louisville  &  Nashville  Rd.  Co.  v.  Reaume  (1908)   32  Ky.  L. 

R.  946 490 

Wagoner  v.  Hazle  Twp.    (1906)    215  Pa.  St.  219 493 

McCarthy  v.  Spring  Valley  Coal  Co.  (1908)  232  111.  473 495 

Brown  v.  Swineford   (1878)  44  Wis.  282 497 

Toledo,  St.  L.  &  W.  Rd.  Co.  v.  Burr  (1910)  82  Ohio  St.  129..  501 

Fertig  v.  State  (1S98)  100  Wis.  301 504 

German-American  Ins.  Co.  v.  Harper  (1902)  70  Ark.  305 507 

Murphy's  Executor  v.  Hoagland  (1908)  32  Ky.  L.  R.  839 509 

Williams  v.  BrooUlyn  Elevated  R.  R.  Co.  (1891)  126  N.  Y,  96. ,  511 

Wilkinson  v.  The  People  (1907)  226  111.  135 614 


TABLE  OF  CONTENTS.  XV 

Section  Page 

Campbell  v.  Maher  ( 1885 )  105  Ind.  383 517 

Hansell-Elcock  Foundry  Co.  v.  Clark  (1905)  214  111.  399 519 


CHAPTER  XIII. 

SPECIAL    INTERROGATORIES. 

Purpose,  Scope  and  Effect. 

Chicago  &  N.  W.  Ry.  Co.  v.  Dunleavy  (1889)  129  III.  132....     521 

Constitutionality. 

Walker  v.  New  Mex.  &  Pac.  Rd.  Co.  (1897)  165  U.  S.  593 530 

Abgument  and  Insteuctions  as  to  Proper  Answers. 

Ryan  V.  Rockford  Ins.  Co.  (1890)   77  Wis.  611 534 

Chicago  &  Alton  R.  R.  Co.  v.  Gore  (1903)   202  111.  188 535 

Capital  City  Bank  v.  Wakefield  (1891)   83  la.  46 536 

Coffeyville  Vitrified  Brick  Co.  v.  Zimmerman  (1900)  61  Kan. 

750   538 

FoBM  OF  Interrogatories. 

Louisville,  New  Albany  &  Chicago  Ry.  Co.  v.  Worley  (1886) 

107  Ind.  320 539 

Chicago  &  Alton  R.  R.  Co.  v.  Harrington  (1901)  192  111.  9 541 

Atchison,  Topeka  &  S.  Fe  R.  R.  Co.  v.  Ayers  (1895)  56  Kan.  176     547 

Compelling  .Icry  to  Give  Direct  Answers. 

Cleveland,  Columbus,  Cincinnati  &  Indianapolis  Ry.  Co.  v.  As- 

bury  (1889)  120  Ind.  289 549 

Effect  of  Answebs  on  General  Verdict. 

Runyan  v.  Kanawha  Water  &  Light  Co.  (1911)  68  W.  Va.  609     551 
Evansville  &  Southern  Traction  Co.  v.  Spiegel  (1911)  — Ind. 

App.  — ;  94  N.  E.  718 555 

Devine  v.  Fed.  Life  Ins.  Co.  (1911)  250  111.  203 557 

Effect  of  Answers  Inconsistent  with  Each  Other. 

Drake  v.  Justice  Gold  Mining  Co.    (1904)    32  Colo.  259 560 

St,  Louis  &  San.  F.  Ry.  Co.  v.  Bricker  (1899)  61  Kan.  224..     562 


CHAPTER  XIV. 

SPECIAL   VERDICTS. 

First  National  Bank  v.  Peck   (1871)   8  Kan.  660 564 

Standard  Sewing  Mach.  Co.  v.  Royal  Ins.  Co.  (1902)   201  Pa. 

St.  645 566 

Wabash  Railroad  Co.  v.  Ray  (1899)   152  Ind.  392 569 

Darcey  v.  Farmers'  Lumber  Co.   (1894)   87  Wis.  245 570 

Baxter  v.  Chicago  &  Northwestern  Ry.  Co.  (1899)  104  Wis.  307  572 


CHAPTER  XV. 

JUDGMENT    NOTWITHSTANDING    THE    VERDICT. 

Plunkett  v.  Detroit  Electric  Ry.  Co.   (1905)   140  Mich.  299..  577 

Floyd  v.  Colo.  Fuel  &  Iron  Co.  (1897)   10  Colo.  App.  54 578 

Cruikshank  v.  St.  Paul  Fire  &  Marine  Ins.  Co.  (1899)  75  Minn. 

266 582 


xvi  TABLE  OF  CONTENTS. 

Section  Page 

CHAPTER  XVI. 

ARREST  OP  JUDGMENT. 

1.  Fob  What  Defects. 

Pelican  Assurance  Co.  v.  Am.  Feed  &  Grocery  Co.  (1909)  122 

Tenn.   652    585 

Gray  v.  Commonwealth  (1895)  92  Va.  772 586 

Hubbard  v.  Rutland  R.  R.  Co.   (1908)  80  Vt.  462 587 

Bull  V.  Matthews   (1897)   20  R.  I.  100 589 

Pittsburgh,  Cincinnati,  Chicago  &  St.  L.  Ry.  Co.  v.  City  of  Chi- 
cago  (1908)   144  111.  App.  293 591 

2.  Time  for  Making  Motion. 

Chicago  &  Alton  R.  R.  Co.  v.  Clausen  (1898)   173  111.  100 594 

Newman  v.  Perrill  (1880)  73  Ind.  153 597 

Keller  v.  Stevens  (1886)  66  Md.  132 598 

3.  Effect  of  Motion. 

State  ex  rel.  Henry  W.  Bond  v.  Fisher  (1910)  230  Mo.  325..  599 
Cincinnati,   Indianapolis,   St.  L.  &  Chicago  Ry.  Co.  v.  Case 

(1889)  122  Ind.  316 604 

Jewel  T.  Blandford  (1838)  7  Dana  472 605 


CHAPTER  XVII. 

NEW  TRIALS. 

1.  General  Purpose. 

Gunn  V.  Union  Rd.  Co.  (1901)  23  R.  I.  289 607 

Caldwell  v.  Wells    ( 1909 )    16  Ida.  459 615 

Armstrong  v.  Whitehead  (1902)  81  Miss.  35 617 

State  V.  Phares  (1884)   24  W.  Va.  657 620 

Dubcich  V.  Grand  Lodge  Ancient  Order  of  United  Workmen 

(1903)  33  Wash.  651 621 

2.  Disqualification  of  Jurors. 

Harrington  v.  Manchester  &  Lawrence  Rd.  (1882)  62  N.  H.  77  623 

Johns  V.  Hodges   (1883)   60  Md.  215 631 

Fitzpatrick  V.  Harris  (1855)  16  B.  Mon.  (Ky.)  561 633 

Knights  of  Pythias  v.  Steele  ( 1901 )   1 07  Tenn.  1 635 

United  States  v.  Christensen   (1890)    7  Utah  26 637 

Florence,  El  Dorado  &  Walnut  Valley  Rd.  Co.  v.  Ward  (1883) 

29  Kan.  354 641 

3.  Misconduct  of  Jury  or  Party. 

Underwood  v.  Old  Colony  St.  Ry.  Co.  (1910)  31  R.  I.  253 645 

Craig  &  Co.  v.  Pierson  Lumber  Co.   (1910)   169  Ala.  548 648 

Baker  v.  Brown  ( 1909 )  151  N.  C.  12 650 

Flesher  v.  Hale  ( 1883 )  22  W.  Va.  44 652 

Corley  v.  New  York  &  Harlem  Rd.  Co.  (1896)  12  N.  Y.  App. 

Div.  409 657 

4.  Accident,  Mistake  and  Surprise. 

Mehnert  v.  Thleme  (1875)   15  Kan.  368 659 

GrifTin  v.  O'Neil  (1891)  47  Kan.  116 661 

Staunton  Coal  Co.  v.  Menk  (1902)   197  111.  369 662 

West.  Un.  Tel.  Co.  v.  Chamblee  (1898)  122  Ala.  428 664 

Hoskins  v.  Hight  (1891)  95  Ala.  284 666 


TABLE  OF  CONTENTS.  xvii 

Section  Page 

Gotzian  v.  McCullum  (1896)  8  S.  D.  186 670 

Hill  V.  McKay   (1907)   36  Mont.  440 672 

Nellums  v.  Nashville   (1900)    106  Tenn.  222 677 

5.  Veedict  Contrary  to  Evidexce. 

Series  v.  Series   ( 1899 )   35  Ore.  289 679 

Harrison  V.  Sutter  St.  Ry.  Co.  (1897)   116  Cal.  156 685 

Graham  v.  Consolidated  Traction  Co.  (1900)  65  N.  J.  L.  539. .  689 

Tathwell  v.  City  of  Cedar  Rapids  (1903)  122  la.  50 691 

6.  Verdict  Contrary  to  Law. 

Lynch  v.  Snead  Architectural  Iron  Works  (1904)  132  Ky.  241  697 

7.  Newly  Discovered  Evidence. 

(a)  Cumulative  Evidence. 

Winfield  Bldg.  &  Loan  Ass'n  v.  McMullen  (1898)  59  Kan.  493  703 

Waller  v.  Graves  ( 1850 )   20  Conn.  305 705 

German  v.  Maquoketa  Savings  Bk.  (1874)  38  la.  368 710 

Brown  v.  Wlieeler  (1901)  62  Kan.  676 712 

Layman  v.  Minneapolis  St.  Ry.  Co.  (1896)  66  Minn.  452 713 

(b)  Impeaching  Evidence. 

Blake  v.  Rhode  Island  Company  (1911)   32  R.  L  213 715 

Chicago  &  Eastern  111.  Rd.  Co.  v.  Stewart  (1903)  203  111.  223.  718 
Moore  v.  Chicago,  St.  L.  &  New  Orleans  Rd.  Co.   (1881)    59 

Miss.  243 720 

(c)  Necessary  Diligence. 

Nicholson  v.  Metcalf  ( 1904 )   31  Mont.  276 721 

Coffer  V.  Erickson   (1911)   61  Wash.  559 723 

Wliittlesev  v.  Burlington,  Cedar  Rapids  &  Northern  Ry.  Co. 

(1903)    121  la.  597 726 

(d)  Probability  of  Change  in  Result. 

Parsons  v.  Lewiston,  Brunswick  &  Bath  St.  Ry.  (1902)  96  Me. 

503    727 

Oberlander  v.  Fixen  &  Co.  (1900)  129  Cal.  690 732 

Ellis  v.  Martin  Automobile  Co.   (1909)  77  N.  .L  L.  339 735 

8.  Effect  of  Statutes  Enumerating  Grounds. 

St.  Louis  &  San  Francisco  Rd.  Co.  v.  Werner  (1904)  70  Kan. 

190   737 

Valerius  v.  Richard  (1894)  57  Minn.  443 739 

Bottineau  Land  &  Loan  Co.  v.  Hintze    (1911)    150  la.  646..  744 

9.  On  Court's  Own  Motion. 

Fort  Wayne  &  Belle   Isle  Ry.  Co.  v.   Wayne  Circuit  Judge 

(1896)   110  Mich.  173 746 

Hensley  v.  Davidson  Bros.  Co.   (1907)   135  la.  106 747 

10.  Discretion  of  Court. 

Loftus  V.  Metropolitan  St.  Ry.  Co.   (1909)   220  Mo.  470 751 

York  V.  Stiles  ( 1899 )  21  R.  I.  225 754 

North  Center  Creek  Mining  &  Smelting  Co.  v.  Eakins  (1880) 

23  Kan.  317 756 

Brooks  V.  San  Francisco  &  North  Pac.  Ry.  Co.  (1895)  110  Cal. 

173   758 

Cohen  v.  Krulewitrh   (1902)  77  N.  Y.  App.  Div.  126 761 

Stauffer  v.  Reading  (1903)  206  Pa.  St.  479 763 

Gila  Valley,  Globe  &  Northern  Ry.  Co.  v.  Hall  (1911)  13  Ariz. 

270 765 


xviii  TAB1.E  OF  CONTENTS. 

Section  Page 

11.  Notice  of  Motion. 

Hansen  v.  Fish  (1871)  27  Wis.  535 768 

Boarman  v.  Hinckley   (1897)    17  Wash.  126 770 

Anderson  v.  First  Nat.  Bank  of  Grand  Forks  (1895)  5  N.  D.  80  771 

Krakower  v.  Davis  (1897)  20  Misc.  (N.  Y.)  350 772 

Simpson  v.  Budd  (Cal.  1891)  27  Pac.  758 773 

12.  Time  fob  Motion. 

City  of  St.  Joseph  v.  Robison  (1894)  125  Mo.  1 775 

Bailey  v.  Drake  (1895)   12  Wash.  99 776 

Hayes  v.  Ionia  Circuit  Judge  (1900)  125  Mich.  277 777 

Roggencamp  v.  Dobbs   ( 1884 )   15  Neb.  620 779 

Hellman  v.  Adler  &  Sons  Clothing  Co.   (1900)  60  Neb.  580..  780 

Herz  V.  Frank  (1898)  104  Ga.  638 782 

People  V.  Bank  of  San  Luis  Obispo  (1910)  159  Cal.  65 784 

Seward  v.  Cease   (1869)   50  111.  228 789 

13.  Form  of  Motion. 

Memphis  St.  Ry.  Co.  v.  Johnson  (1905)  114  Tenn.  632 791 

King  V.  Gilson   (1907)    206  Mo.  264.. 795 

Rutherford  V.  Talent  (1886)  6  Mont.  112 798 

14.  Affidavits. 

Vose  V.  Mayo  (1871)   3  Cliff.   (U.  S.)   484 800 

Draper  v.  Taylor   (1899)    58  Neb.  787 801 

Phillips  V.  Rhode  Island  Co.  (1910)  32  R.  I.  16 802 

Mattox  V.  United  States  (1892)   146  U.  S.  140 811 

Wolfgram  v.  Town  of  Schoepke   (1904)   123  Wis.  19 815 


CHAPTER  XVIII. 

TRIAL  AND  FINDINGS  BY  THE  COURT. 

Fowler  v.  Towle  (1870)   49  N.  H.  507 820 

Utah  Nat.  Bank  v.  Nelson  (1910)  —  Utah  — ;  111  Pac.  907..  826 

Darling  v.  Miles  (1911)  57  Ore.  593 831 

Slayton  v.  Felt  (1905)   40  Wash.  1 833 

Graham  v.  State  ex  rel.  Board  of  Commissioners   (1879)   66 

Ind.  386 836 

City  of  Owensboro  v.  Wier  ( 1893 )   95  Ky.  158 838 

Gaines  &  Co.  v.  Whyte  Grocery,  Fruit  &  Wine  Co.  (1904)  107 

Mo.  App.  507 839 

City  of  Buffalo  v.  Delaware,  Lackawanna  &  Western  R.  R.  Co. 

(1907)   190  N.  Y.  84... 841 


CHAPTER  I. 
WRITS  OF  SUMMONS. 

Section  1.    What  is  Process. 

BEOOKS  V.  NEVADA  NICKEL  SYNDICATE. 

Supreme  Court  of  Nevada,  1898, 
24  Nevada,  311, 
By  the  Court,  Massey,  J. : 

The  first  objection  made  to  the  validity  of  the  judgment, 
based  upon  defects  appearing  in  the  judgment  roll,  is  that 
no  summons  was  ever  issued  in  the  action — that  the  paper 
purporting  to  be  a  summons  is  void  for  the  reason  that  it 
runs  in  the  name  of  "The  People  of  the  State  of  Nevada." 
Section  13,  article  VI  of  the  constitution  requires  that  the 
style  of  all  process  shall  be  "The  State  of  Nevada."  Is  a 
summons  issued  under  our  law  a  process  within  the  mean- 
ing of  the  provision  of  said  article? 

Under  our  practice  act,  which  has  been  in  force  since 
1869,  provision  is  made  for  the  issuance  of  summons  to  be 
signed  by  the  attorney  for  the  plaintiif,  or  by  the  clerk, 
and,  when  issued  by  the  clerk,  requiring  that  it  shall  be 
under  the  seal  of  the  court.  The  same  act  specifically  de- 
fines the  contents  of  the  same.  There  is  nothing  in  the  act 
requiring  the  summons  to  run  in  any  particular  form.  It 
has  never  been  treated  as  a  process  within  the  meaning  of 
our  constitution  either  by  the  legislature  or  the  courts,  and, 
while  there  is  conflict  of  authority  upon  a  similar  question, 
under  constitutions  and  statutes  similar  to  our  own,  in 
other  states,  we  are  disposed  to  hold  that  a  summons  is  not 
a  process,  within  the  meaning  of  our  constitution. 

Upon  this  point  we  quote  from  a  decision  of  the  Supreme 
Court  of  Colorado,  in  which  it  says:  "As  to  the  first  point 
raised — that  the  summons  is  such  a  process  as  may  be  is- 
sued in  the  name  of  the  people  of  Colorado — we  are  strong- 
T.  p.— 1 


2  Trial  Practice  [Chap.  1 

ly  inclined  to  follow  the  conclusion  of  the  Supreme  Court 
of  Florida  in  Gilmer  v.  Bird,  15  Fla.  411.  In  this  case  the 
identical  question  here  presented  is  discussed  at  some 
length — that  is,  'that  the  summons,  as  authorized  by  the 
code,  is  a  "process",  within  the  meaning  of  the  constitu- 
tional provisions  which  require  the  style  of  all  process  to 
be  the  "State  of  Florida";  that  the  summons  had  no  such 
style;  that  this  was  essential  to  the  validity  of  thb  judg- 
ment, there  having  been  no  appearance.'  And  the  court 
said:  'But  is  the  notice  given  by  an  attorney  of  the  insti- 
tution of  a  suit,  in  a  form  similar  to  a  summons,  but  not 
issuing  out  of  a  court,  a  "process"  within  the  meaning  of 
the  constitution?  Baron  Comyn,  in  giving  the  definition 
of  the  term  "process"  says  it  imports  the  writs  which 
issue  out  of  any  court  to  bring  the  party  to  answer,  or  for 
doing  execution.  There  is  no  definition  of  "process"  given 
by  any  accepted  authority,  which  implies  that  any  writ  or 
method  by  which  a  suit  is  commenced  is  necessarily  "pro- 
cess." A  party  is  entitled  to  notice  and  to  a  hearing  under 
the  constitution  before  he  can  be  affected,  but  it  is  nowhere 
declared  or  required  that  that  notice  shall  be  only  a  writ 
issuing  out  of  a  court.'  "  {Comet  Consolidated  M.  Co.  v. 
Frost,  25  Pac.  (Col.)  506;  Hamia  v.  Russel,  12  Minn.  80; 
Bailey  v.  Williams,  6  Or.  71;  Nichols  v.  The  Planh  Road 
Co.,  4  G.  Greene,  44.) 


Section  2.    Designation  of  Court  and  Parties. 

EGGLESTON  V.  WATTAWA. 

Supreme  Court  of  Iowa.    1902. 

117  Iowa,  676. 

Action  on  a  judgment  recovered  by  default  in  the  cir- 
r'uit  court  of  South  Dakota  in  and  for  Brule  county.  De- 
fendant denmrred  on  tlie  ground  tliat  the  summons  in  the 
action  on  which  the  judgment  was  recovered  was  not  suffici- 
ent to  give  the  court  jurisdiction.  The  trial  court  sustained 
this  demurrer,  and,  on  phiintiff's  election  to  stand  on  his 


Sec.  2]  Writs  of  Summons  3 

petition,   rendered   judgment   for   defendant,   from   whicli 
plaintiff  appeals. — Affirmed. 

McClain,  J. — Although  the  action  on  which  the  judg 
ment  was  rendered  in  South  Dakota  was  entitled  in  the 
circuit  court,  the  summons  required  defendant  "to  answer 
the  complaint  of  N.  W.  Eggleston,  plaintiff,  wliich  will  be 
filed  in  the  office  of  the  clerk  of  the  district  court  within 
and  for  said  Brule  county,  at  Chamberlain,  Brule  Co.,  S. 
D.,  and  to  serve  a  copy  of  your  answer  to  the  said  com- 
plaint on  the  subscriber  at  the  office  in  the  city  of  Cham- 
berlain, S.  D.,  in  said  county  and  state,  within  thirty  days 
after  the  service  of  this  summons,  exclusive  oi  the  day  of 
service,  or  the  plaintiff  will  apply  to  the  court  for  the  re- 
lief demanded  in  the  complaint,  besides  costs."  This  sum- 
mons was  served  on  January  9,  1892.  The  complaint  on 
which  judgment  was  rendered  by  the  circuit  court  of  Brule 
county  was  not  filed  until  December  9,  1892,  and  judgment 
by  default  was  entered  on  that  day.  The  provisions  of  the 
statutes  of  South  Dakota,  set  out  by  plaintiff  in  his  petition, 
provide,  with  reference  to  the  summons,  that  it  shall  re- 
quire defendant  '  *  to  answer  the  complaint  and  serve  a  copy 
of  his  answer  on  the  person  whose  name  is  subscribed  to  the 
summons,  at  a  place  within  the  state  to  be  therein  specified, 
in  which  there  is  a  postoffice,  within  30  days  after  the  ser- 
vice of  the  summons,  exclusive  of  the  day  of  service."  It 
is  evident  that  under  such  statutory  provision  the  sum- 
mons in  question  was  fatally  defective  in  not  correctly  nam- 
ing the  court  in  which  the  complaint  would  be  filed.  The 
statutes  of  the  state  do  not,  so  far  as  made  to  appear  in 
this  record,  specifically  require  that  the  court  in  which  the 
defendant  is  to  appear  shall  be  named,  but  certainly  that  is 
essential  to  such  a  notice  as  would  be  sufficient  to  consti- 
tute due  process  of  law.  Moreover,  it  is  required  by  the 
statutes  of  that  state,  if  a  copy  of  the  complaint  is  not 
served  with  the  summons,  that  "the  summons  must  state 
where  the  complaint  is  or  will  be  filed."  The  summons  in 
question  did  not  state  that  essential  fact,  for  no  complaint 
was  ever  filed  in  the  "district  court."  There  was  in  fact 
no  such  court  then  in  existence,  the  "district  court"  as 
known  under  the  territorial  government,  having  been  re- 
placed by  the  "circuit  court"  by  the  provisions  of  the  con- 
stitution under  which  the  state  was  admitted.    This  change 


4  Teial  Practice  [Chap.  1 

of  courts  is  pleaded  in  the  case  by  plaintiff  as  an  ex- 
cuse for  the  mistaken  description,  but  the  fact  remains 
that  defendant  was  not  notified  that  the  complaint  would 
be  filed  in  the  circuit  court,  in  which  the  judgment  was 
rendered,  but  was  advised  that  it  would  be  filed  in  another 
court,  which  in  fact  did  not  exist.  Under  such  circum- 
stances we  think  defendant  was  justified  in  assuming 
that  no  valid  judgment  could  be  rendered  against  him.  The 
circuit  court  acquired  no  jurisdiction,  and  the  judgment 
on  which  this  action  is  based  was  therefore  void.  See,  as 
bearing  in  general  on  the  question,  Lyon  v.  Vanatta,  35 
Iowa  521.  Other  questions  are  argued,  but,  as  they  involve 
the  construction  of  statutes  of  another  state,  their  decision 
would  be  of  no  advantage  to  anyone. 

The  demurrer  was  rightly  sustained,  and  the  judgment 
is  affirmed. 


LYMAN  V.  MILTON. 

Supreme  Court  of  California.    1872, 
44  California,  630. 

By  the  Court,  Belcher,  J.: 

The  plaintiff  seeks  by  this  action  to  enforce  the  execution 
of  a  resulting  trust. 

The  complaint  names  as  defendants,  Martha  Ellen  Mil- 
ton, administratrix  of  the  estate  of  Daniel  Milton,  deceased, 
Martha  Ellen  Milton,  and  Ida  May  Milton.  It  alleges  the 
death  of  Daniel  Milton,  leaving  him  surviving  as  his  only 
heirs  at  law  his  widow,  Martha  Ellen  Milton,  and  his  daugh- 
ter, Ida  May  Milton,  an  infant  of  about  the  age  of  three 
years,  and  that  Martha  Ellen  Milton  had  been  duly  ap- 
pointed the  administratrix  of  his  estate. 

Upon  the  complaint  a  summons  was  issued,  entitled:  '*W. 
Lyman,  plaintiff,  v.  M.  E.  Milton  {administratrix,  etc.)  et 
al.,  defrjidants."  It  was  addressed  to  *'M.  E.  Milton,  ad- 
ministratrix et  al.,  defendants,"  the  name  of  Ida  May  Mil- 
ton nowhere  appearing  in  it.  This  summons  was  served 
upon  both  defendants,  and  afterwards,  upon  application  of 


Sec.  2]  Writs  of  Summons  5 

the  plaintiff,  the  adult  defendant  was  appointed  the  guard- 
ian ad  litem  of  the  infant  defendant.  The  said  Martha  El- 
len accepted  the  trust  of  guardian  ad  litem,  and,  thereupon, 
before  filing  answer,  or  otherwise  appearing,  appeared  in 
court  by  counsel,  stating  to  the  court  that  she  appeared  on 
behalf  of  said  infant  for  the  purpose  only  of  moving  to 
quash  the  summons.  The  court  refused  to  permit  such  an 
appearance,  and  refused  to  recognize  counsel,  or  hear  any- 
thing they  might  have  to  say  on  behalf  of  the  infant,  unless 
they  entered  an  unqualified  appearance  for  the  general  pur- 
pose of  defense.  Having  duly  entered  an  exception  to  this 
ruling,  counsel  then,  in  obedience  thereto,  stated  without 
qualification  that  they  appeared  on  behalf  of  all  the  de- 
fendants. Thereupon  they  submitted  a  written  motion  on 
the  part  of  the  said  infant  and  her  guardian,  that  the  sum- 
mons be  quashed  on  the  ground,  among  others,  that  the 
same  is  radically  defective  in  not  stating  the  parties  to  the 
action.  The  court  overruled  this  motion  and  the  defendants 
excepted. 

Afterwards,  upon  answers  filed  in  behalf  of  each  defend- 
ant, the  case  was  tried  by  the  court  and  judgment  entered 
in  favor  of  the  plaintiff. 

The  statute  (Practice  Act,  Sec.  24)  provides  that  "the 
summons  shall  state  the  parties  to  the  action,  the  Court  in 
which  it  is  brought,  the  county  in  which  the  complaint  is 
filed,  the  cause  and  general  nature  of  the  action,  and  re 
quire  the  defendant  to  appear  and  answer  the  complaint 
within  the  time  mentioned  in  the  next  section  after  the 
service  of  the  summons,  exclusive  of  the  day  of  service,  or 
that  judgment  by  default  will  be  taken  against  him  accord- 
ing to  the  prayer  of  the  complaint,  briefly  stating  the  sum 
of  money  or  other  relief  demanded  in  the  complaint." 

It  is  manifest  that  the  summons  in  this  case  did  not  state 
the  parties  to  the  action.  M.  E.  Milton,  in  her  representa- 
tive capacity  of  administratrix,  was  but  one  of  three  parties 
defendant.  The  words  ''et  al.,"  in  the  connection  in  which 
they  are  used,  are  of  no  significance.  They  indicate,  at 
most  that  there  are  still  other  parties  who  are  not  named. 
Without  them,  so  far  as  a  compliance  with  the  statute  is 
concerned,  the  summons  would  have  been  as  complete  as 
with  them. 

Is  a  summons,  in  which  one  defendant  onlv  is  named, 


6  Trial  Practice  [Chap.  1 

when  in  fact  there  are  several  defendants  to  the  action,  a 
good  summons  to  the  defendants  not  named  in  it?  Must 
one  who  is  served  with  a  summons  to  which  he  does  not 
appear  to  be  a  party  take  notice  at  his  peril  that  he  is 
really  a  party  to  the  action?  To  hold  so  we  must  hold  that 
the  section  of  the  statute  referred  to  is  only  directory  in 
its  requirements.  But  if  it  be  directory  and  not  manda- 
tory, why  may  the  summons  not  omit  to  state  the  court  in 
which  the  action  is  brought,  or  the  county  in  which  the 
complaint  is  filed,  or  the  cause  and  general  nature  of  the 
action,  or  the  time  within  which  the  defendant  is  required 
to  appear,  or  the  amount  of  money  or  other  relief  de- 
manded in  the  complaint,  or  all  of  them  together,  and  still 
be  held  good?  All  of  these  things  are  stated  in  the  com- 
plaint, except  the  time  within  which  the  defendant  must 
appear,  and  that  is  a  matter  regulated  by  law,  which  every 
one  is  presumed  to  know.  If  notice  only  is  required,  the 
])arty  has  that  when  he  sees  a  copy  of  the  complaint  and 
liimself  named  in  it  as  a  defendant.  And  yet  no  one  would 
contend  that  a  summons  which  omitted  to  state  the  several 
matters  required  by  the  statute  could  be  held  good. 

The  summons  is  the  process  by  which  parties  defend- 
ant are  brought  into  Court,  so  as  to  give  the  Court  juris- 
diction of  their  persons.  Its  form  is  prescribed  by  law; 
and  whatever  the  form  may  be  it  must  be  observed,  at  least 
substantially.  It  may  be  that  a  summons  under  our  system 
is  required  to  state  more  than  is  necessary  for  the  informa- 
tion of  the  defendant ;  that  a  copy  of  the  complaint  served 
by  the  Sheriff  or  the  attorney  would  have  been  all  that  is 
needful.  If  that  be  so  it  is  a  matter  for  the  legislature  and 
not  for  the  Courts.  We  entertain  no  doubt  that  a  sum- 
mons must  contain  all  that  is  required  by  the  statute, 
whether  deemed  needful  or  not,  and,  among  other  things, 
must  state  the  parties  to  the  action. 

It  may  be  that  when  the  defendant  moved  to  quash  the 
summons  for  insufficiency  the  Court  might  have  entertained 
u  counter  motion  to  have  it  amended  by  inserting  the  omit 
ted  names  of  the  defendants,  and,  on  its  being  so  amended, 
might  have  denied  the  original  motion. 

In  Polack  v.  Hunt,  2  Cal.  193,  it  was  held  that  the 
court  had  power  to  amend  the  summons  so  as  to  make 
it  conform  to  the  law,  when  it  operated  no  hardship  or 


Sec.  3]  Wbits  of  Summons  7 

surprise  to  the  defendants.  No  such  counter  motion, 
however,  was  made  in  this  case,  and  we  cannot  pass  up- 
on that  question. 

A  defendant  has  a  right  to  appear  for  the  purpose  of 
moving  to  dismiss  a  defective  summons,  and  it  is  error 
in  the  Court  to  refuse  him  that  privilege.  Nor  does  the 
fact  that  he  afterwards  appears  and  answers  waive  his. 
right  or  cure  the  error.  {Deidesheimer  v.  Brown,  8  Cal. 
339;  Gray  v.  Haives,  id.  569.) 

For  the  error  named  the  judgment  must  be  reversed 
and  cause  remanded  for  further  proceedings,  and  it  is  so 
ordered.^ 

iln  Saddler  v.  Smith,  (1907)  54  Fla.  671,  45  So.  718,  the  court  said; 
"Where  there  are  several  parties  defendant  it  would  not  be  suificient  to  give 
the  name  of  one  defendant  in  the  tody  of  the  subpoena  or  copy,  followed  by 
the  words  et  al.  Lyman  v.  Milton,  44  Cal.  630.  And  so  we  have  held  that 
in  a  writ  of  error  or  appeal,  all  parties  thereto  must  be  named  and  cannot 
be  included  in  the  words  et  al.  *  *  *  While  the  words  et  al.  are  incapable  of 
standing  in  the  place  of  the  names  of  parties  required  by  law  to  be  stated 
in  a  subpoena  or  writ  of  error,  they  may  be  used  in  endorsing  the  title  of 
the  cause  on  the  copy  of  subpoena  where  there  is  no  statute  or  rule  requiring 
the  names  of  the  parties  to  be  indorsed  thereon. ' ' 


Section  3.     Designation  of  Time  for  Appearance. 

LAWYER  LAND  COMPANY  V.  STEEL. 

Supreme  Court  of  Washington.    1906. 

41  Washington,  411, 

Hadley,  J. — 

********** 

This  appeal  is  from  an  order  quashing  a  summons  and 
the  service  thereof.  The  essential  part  of  the  summons 
reads  as  follows: 

"You  and  each  of  you  are  hereby  summoned  to  appear 
within  twenty  days  after  the  service  of  this  summons,  ex- 
clusive of  the  day  of  service,  if  served  within  the  state 
of  Washington,  and  within  sixty  days  if  served  out  of 
the  state  of  Washington,  and  defend  the  above  entitled 
action  in  the  court  aforesaid,  and  answer  the  complaint 
of  the  plaintiff  and  serve  a  copy  of  your  answer  on  the 


8  Tbiax.  Peactice  [Chap.  1 

person  whose  name  is  subscribed  to  this  summons  at  Spo- 
kane, Spokane  county,  state  of  Washington,  and  in  case 
of  your  failure  so  to  do,  judgment  will  be  rendered 
against  you  according  to  the  demand  of  the  complaint 
which  will  be  filed  with  the  clerk  of  said  court,  a  copy  of 
which  is  herewith  served  upon  you." 

The  summons  and  complaint  were  personally  served  up- 
on respondents  in  the  state  of  North  Carolina.  The 
affidavit  of  service  is  in  all  respects  regular  and  sufficient. 
Bal.  Code,  Section  4879,  provides  as  follows: 

"Personal  service  on  the  defendant  out  of  the  state  shall 
be  equivalent  to  service  by  publication,  and  the  summons 
upon  the  defendant  out  of  the  state  shall  contain  the  same  as 
personal  summons  within  the  state  except  it  shall  require 
the  defendant  to  appear  and  answer  within  sixty  days  after 
Fuch  personal  service  out  of  the  state." 

It  is  argued  by  respondents,  and  such  seems  to  have  been 
the  view  of  the  superior  court,  that  inasmuch  as  the  sum- 
mons was  so  drawn  that  it  contemplated  that  a  service 
might  be  made  either  within  or  without  the  state,  it  is 
fatally  defective.  It  is  contended  that  the  duty  was  upon 
appellant  in  advance  to  determine  whether  service  was 
to  be  made  within  or  without  the  state,  and  that  the  sum- 
mons should  have  been  drawn  with  reference  to  one  or  the 
other  only.  It  seems  to  us  that  the  essential  inquiry  is, 
Was  the  summons  by  its  terms  confusing  or  misleading  to 
respondents?  We  cannot  see  that  it  was.  It  plainly  told 
them  that,  if  they  were  served  without  the  state,  they  were 
required  to  appear  within  sixty  days.  That  portion  re- 
lating to  service  within  the  state  became  mere  surplusage 
in  view  of  the  service  that  was  made,  and  it  was  so  mani- 
festly such  that  it  was  in  no  sense  confusing.  We  there- 
fore think  the  court  erred  in  quashing  the  summons  and 
its  service.  Under  the  above  statute,  the  service  was  equiv- 
alent to  service  by  publication. 

The  judgment  quashing  the  summons  and  service  is 
therefore  reversed,  and  the  cause  remanded,  with  instruc- 
tions to  vacate  that  part  of  the  order  appealed  from  and 
proceed  with  the  action,^ 

^  Return  Dny.  Tn  C1ont,'h  v.  MrDoiialrl,  (1877)  18  Kan.  114,  the  statute 
required  that  the  summons  should  be  served  and  returned  by  the  officer  with- 


Sec.  4]  Writs  of  Summons  9 

in  ten  days  from  its  date.  The  sumnione  .vas  in  fact  made  returnable  In  six 
days,  and  was  served  on  the  day  before  the  return  day.  The  court  said: 
"Now  a  suninioii.s  of  tliis  kind  wo  think  is  never  void.  It  might  l)e  voidable 
however,  if  the  oilier  slioiild  take  the  whole  tiir.e  (ten  days)  given  him  by 
law  within  which  to  .serve  it  uj>on  the  defendant,  for  in  that  case  the  time 
given  to  the  defendant  withiri  which  to  answer  or  demur  would  be  shortened. 
But  V  hen  tJ'C  olficcr  serves  the  summons  before  the  return  day  thereof,  as  in 
this  case,  we  do  not  think  that  either  the  summons  or  the  service  is  either 
void,  or  voidable.  In  such  a  case  the  defendant  has  lost  nothing.  He  has 
his  full  twenty  days  after  the  return  day  of  the  summons  within  which  to 
answer  or  demur,  and  that  is  all  that  the  law  gives  him  in  any  case.  It  is 
the  time  of  the  officer,  and  not  that  of  the  kfeudant,  that  is  shortened,  by 
makinir  the  return  of  the  summons  less  th:.i,  !(_ti  days  from  its  date." 

Where  the  retarn  d:iy  and  ajijearance  day  arc  the  same,  as  in  some  states, 
the  argument  just  quoted  would  of  course  not  apply. 

See,  also,  Morris  v.  Uealy  Lumber  Co.,  (1903)  33  Wash.  451.  74  Pac.  662. 


Section  4.    Desckiption  of  Cause  of  Action. 
BEWICK  V.  MUIR. 

Supreme  Court  of  California.    1890. 
83  California,  368. 

Sharpstein,  J,  This  was  an  action  to  foreclose  a  num- 
ber of  liens  npon  a  mine  for  labor  and  materials  under  the 
act  of  1880.  There  were  forty-five  plaintiffs,  each  claim- 
ing a  separate  lien.  Judgment  was  given  for  the  plaintiffs, 
and  two  of  the  defendants  appealed. 

1.  The  summons  is  sufficient.  It  states  the  nature  of 
the  action  in  general  terms,  and  this  is  all  the  statute  re- 
quires. It  is  apparent  from  the  statements  of  the  summons 
that  the  action  in  which  it  was  issued  was  to  recover  money 
and  to  foreclose  liens.  This  is  the  general  nature  of  the 
action.  It  is  unnecesary  to  state  whether  the  right  to  the 
money  sought  to  be  recovered  accrued  from  work  and  la- 
bor, or  from  goods  sold  and  delivered,  or  to  state  the  kind 
of  lion,  or  on  what  property  the  lien  attached.  All  these 
things  appear  in  the  complaint  on  file,  of  which  filing  he 
is  notified  by  the  summons,  and  if  he  is  not  notified  he  is 
bound  in  law  to  know  it.  He  is  bound  to  know  that  a  com- 
plaint has  been  filed;  for  otherwise  a  summons  could  not 
issue.  It  makes  no  difference  that  a  copy  of  the  com- 
plaint is  not  served  on  the  party  moving.  The  above  is  in 
accordance  with  the  dictum  in  Lyman  v.  Milton,  44  Cal.  631. 


3.0  Trial  Pbactice  [Cbap.  1 

The  summons  states  what  the  statute  requires  and  all  thai 
is  needful.  The  cases  decided  in  Lyman  v.  Milton,  supra, 
as  also  in  Ward  v.  Ward,  59  Cal.  141,  were  different  from 
this,  and,  as  said  above,  there  is  a  compliance  with  the 
dictum  in  the  former  case  and  with  the  statute.  Why  re- 
quire that  to  be  inserted  in  the  summons  which  must  ap- 
pear in  the  complaint  ?  Our  practice  is  cumbersome  enough 
without  its  being  made  more  so  by  judicial  decision.  We 
cannot  understand  how  it  can  be  said  that  the  summons 
does  not  contain  '*a  statement  of  the  nature  of  the  action 
in  general  terms."  The  Code  of  Civil  Procedure  provides 
(which  is  equivalent  to  a  command  to  all  of  the  courts  of 
the  state)  that  all  of  its  provisions  are  to  be  liberally  con- 
strued, with  a  view  to  effect  its  objects  and  promote  jus- 
tice. (Code  Civ.  Proc.  Sec.  4.)  The  objects  of  the  require- 
ments of  the  statute  as  to  what  the  summons  shall  contain 
are  carried  out  by  serving  it  with  a  general  statement  which 
is  specialized  in  the  complaint,  and  it  is  injustice  to  turn  a 
party  out  of  court  or  reverse  a  judgment  on  a  view  of  the 
summons  merely  technical,  when  the  summons  points  to 
the  complaint  where  the  particular  statement  is  made,  and 
if  a  copy  of  the  complaint  is  not  served  on  the  moving- 
party,  he  knows  where  to  j&nd  it.  When  the  motion  was 
made  at  the  bar  of  the  court,  the  complaint  was  no  doubt 
within  reach,  or  it  could  have  been  procured  in  a  moment. 
King  v.  Blood,  41  Cal.  316,  is  precisely  in  point,  and  treats 
the  question  as  it  is  here,  as  a  perusal  will  at  once  show. 
The  court  did  right  in  denying  the  motion. 

[Reversed  on  other  grounds.] 


Sec.  5]  Writs  of  Summons  11 

Section  5.    Signature,  Teste  and  Seal. 

LOWE  V.  MOERIS. 

Supreme  Court  of  Georgia.    1853, 

13  Georgia,  147, 

Motion  to  dismiss  writ  of  error. 

Lumpkin,  J.,  concurring. 
Is  a  writ  of  error  a  nullity  without  a  seal? 
My  first  impression  was,  that  this  defect  was  fatal.    Up- 
on reflection,  my  final  conclusion  is,  the  other  way.    *    *    * 

********** 

Lord  Coke  defines  a  seal  to  be,  wax  with  an  impression, 
(3  Inst.  169.)  " Sigillum"  says  he,  "est  certa  impressa, 
quia  cera  sine  impressione  non  est  sigillum."  And  this  has 
been  adopted  as  the  Common  Law  definition  of  a  seal. 
Perk.  129,  134,  Bra.  tit.  Faits.  17,  30.  2  Leon.  21.  But  it  is 
a  curious  fact  that  there  is  neither  an  Act  of  Parliament 
nor  an  adjudged  case,  up  to  Lord  Coke's  day,  to  bind  the 
courts  as  to  what  constitutes  a  seal.  His  opinion  was  prob- 
ably founded  on  the  practice  of  the  country  in  his  day. 

New  York,  and  most  of  the  States  North,  have  held  that 
a  seal  is  an  impression  upon  wax,  wafer  or  some  other 
tenacious  substance,  capable  of  being  impressed.  5  John. 
Rep.  239,  2  Caine's  Rep.  262.  21  Pick.  Rep.  417.  But  in 
Pennsylvania,  New  Jersey,  and  the  Southern  and  Western 
States  generally,  the  impression  upon  wax  has  been  dis- 
used, and  a  circular,  oval,  or  square  mark,  opposite  the 
name  of  the  signer,  is  held  to  have  the  same  effect  as  a  seal, 
the  shape  of  it  being  altogether  indifferent.  It  is  usually 
written  with  a  pen,  sometimes  printed.  2  Serg.  d  Raivle, 
503.     1  Ball.  63.     1  Watts,  322,  2  Halst.  272. 

The  truth  is,  that  this  who^e  sul)ject,  like  many  others, 
is  founded  on  the  usage  of  the  times,  and  of  the  country. 
A  scroll  is  just  as  good  as  an  impression  on  wax,  wafer,  or 
parchment,  by  metal,  engraved  with  the  arms  of  a  prince, 
potentate,  or  private  person.  Both  are  now  utterly  worth- 
less, and  the  only  wonder  is,  that  all  technical  distinctions 
growing  out  of  the  use  of  seals,  such  as  the  Statute  of  Lim- 
itations, plea  to  the  consideration,  etc.,  are  not  at  once  uni- 


12  Trial  Practice  [Chap.  1 

versally  abolished.  The  only  reason  ever  urged  at  this, 
day,  why  a  seal  should  give  greater  evidence  and  dignity  to 
writing  is,  that  it  evidences  greater  deliberation,  and  there- 
fore should  impart  greater  solemnity  to  instruments.  Prac- 
tically we  know  that  the  art  of  printing  has  done  away  with 
this  argument.  For  not  only  are  all  official  and  most  in- 
dividual deeds,  with  the  seals  appended,  printed  previ- 
ously, and  filled  up  at  the  time  of  their  execution,  but  even 
merchants  and  business  men  are  adopting  the  same  prac- 
tice, as  it  respects  their  notes. 

Once  the  seal  was  everything,  and  the  signature  was 
nothing.  Now  the  very  reverse  is  true:  the  signature  is 
everything,  and  the  seal  nothing.      *      *      * 

So  long  as  seals  distinguished  identity,  there  was  pro- 
priety in  preserving  them.  And  as  a  striking  illustration 
see  the  signatures  and  seals  to  the  death  warrant  of  Charles 
the  First,  as  late  as  January,  16-1:8.  They  are  49  in  num- 
ber, and  no  two  of  them  alike.  But  to  recognize  the  wav- 
ing, oval  circumflex  of  a  pen,  with  those  mystic  letters  to  the 
uninitiated,  L.  S.  imprisoned  in  its  serpentine  folds,  as 
equipotent  with  the  coats  of  arms  taken  from  the  devices 
engraven  on  the  shields  of  knights  and  noblemen;  shades 
of  Eustace,  Roger  de  Beaumont,  and  Geoffry  Gifford,  what 
a  desecration!    The  reason  of  the  usage  has  ceased;  let  the 

custom  be  dispensed  with  altogether. 

********** 

With  these  desultory  remarks  I  am  content  to  leave  the 
law,  learning  and  logic  of  the  case  to  my  brother  Warner, 
to  whom  it  legitimately  belongs,  and  who,  I  have  no  doubt, 
will  do  ample  justice  to  the  argument,  and  with  whom  I 
concur,  in  retaining  the  writ  of  error.^ 

iThe  entire  opinion,  only  a  small  part  of  wLich  is  ^iven  liere,  is  replete 
with  Avit  and  learning,  and  a  reading  of  it  will  afTi)rd  both  entertainment  and 
profit. 


Sec.  5J  Wkits  of  Summons  13 

CHOATE  V.  SPENCER. 

Supreme  Court  of  Montana.    1893. 

13  Montana,  127. 

Action  to  annul  sheriff's  deed.  Defendants'  demurrer 
to  the  complaint  was  sustained  by  Henry,  J.     Reversed. 

Pemberton,  C.  J. 

********** 

The  appellant  insists  that  the  summons  issued  out  of  the 
district  court  of  the  fourth  judicial  district  of  the  territory 
of  Montana,  in  and  for  Choteau  county,  on  the  seventeenth 
day  of  June,  1888,  in  the  suit  of  Jere  Sullivan  against  this 
appellant,  was  absolutely  void,  because  it  was  not  authenti- 
cated by  the  seal  of  the  said  court.  If  this  contention  is  cor- 
rect, the  district  court  never  acquired  jurisdiction  of  this 
appellant,  who  was  defendant  in  that  suit,  by  the  issuance 
and  service  of  such  summons ;  and  any  judgment  said  court 
may  have  entered  in  said  cause,  as  well  as  the  execution 
issued  for  the  enforcement  of  such  judgment,  and  all  other 
proceedings  thereunder,  including  the  levy  thereof  on  the 
property  of  appellant,  and  the  sale  and  execution  and 
delivery  of  the  sheriff's  deed  complained  of,  would  neces- 
sarily be  null  and  void.  ***** 

At  common  law,  a  writ  issuing  from  a  court  having  a 
seal,  in  order  to  be  considered  authentic  or  of  any  value, 
must  be  attested  by  the  seal  of  the  court  from  which  it  is 
issued.  The  laws  of  this  state  provide  that  the  district 
courts  shall  have  a  seal  (Code  Civ.  Proc.  Sec.  527)  and 
that  the  clerk  of  the  court  shall  keep  the  seal  (Code  Civ. 
Proc.  Sec.  528).  And  section  68  of  the  Code  of  Civil  Pro- 
cedure requires  that  the  summons  must  be  issued  under 
the  seal  of  the  court.  So  that,  under  our  statutes,  there  is 
no  departure  from  the  common  law  rule  requiring  such 
writs  to  be  authenticated  by  the  seal  of  the  court  from 
which  they  issue.  The  appellant  has  cited  a  number  of 
authorities  holding  the  common  law  doctrine  that  such 
writs  must  be  authenticated  by  the  seal  of  the  court  from 
which  they  are  issued  in  order  to  give  them  validity,  and 
without  which  they  would  be  void.  The  principal  case  re- 
lied upon  by  appellant  in  support  of  his  contention 
that  the  summons  under  discussion  was  void  for  want  of 


M  Teial  Pkactice  [Chap.  1 

the  seal  of  the  court  is  Insurance  Co.  v.  Hallock,  6  Wall. 
556.  This  ease  went  to  the  supreme  court  of  the  United 
States,  from  Indiana,  and  involved  the  validity  of  a  deed 
executed  and  delivered  by  a  sheriff  to  real  estate,  under  an 
order  of  sale,  under  a  statute  of  that  state.  The  statute  re- 
quired the  order  of  sale  to  be  issued  under  the  seal  of  the 
court.  The  seal  was  omitted  from  the  order  of  sale.  In 
delivering  the  opinion  of  the  court,  Mr.  Justice  Miller,  says : 
*'If  the  paper  here  called  an  'order  of  sale'  is  to  be  treated 
as  a  writ  of  execution  or  fieri  facias  issued  to  the  sheriff, 
or  as  a  process  of  any  kind  issued  from  the  court,  which 
the  law  required  to  be  issued  under  the  seal  of  the  court, 
there  can  be  no  question  that  it  was  void,  and  conferred  no 
authority  upon  the  officer  to  sell  the  land.  The  authorities 
are  uniform  that  all  process  issuing  from  a  court  which  by 
law  authenticates  such  process  with  its  seal  is  void  if  is- 
sued without  a  seal.  Counsel  for  plaintiffs  in  error  have 
not  cited  a  single  case  to  the  contrary,  nor  have  our  own  re- 
searches discovered  one.  We  have  decided  in  this  court 
that  a  writ  of  error  is  void  for  want  of  a  seal,  though  the 
clerk  had  returned  the  transcript  in  obedience  to  the  writ. 
We  have  held  that  a  bill  of  exceptions  must  be  under  the 
seal  of  the  judge."  This  was  a  collateral  attack  made  upon 
the  deed  executed  by  the  sheriff,  under  the  order  of  sale 
from  which  the  seal  had  been  omitted.  Counsel  for  the 
respondents  contend  that  the  case  just  cited  is  not  control- 
ling, and  claim  that  the  Indiana  courts  have  declined  to 
follow  the  rule  therein  asserted,  and  cite  a  number  of  Indi- 
ana cases  in  support  of  their  position.  From  an  examina- 
tion of  the  Indiana  cases  cited  by  respondents  we  are  of 
opinion  that  the  departure  from  the  rule  asserted  in 
Insurance  Co.  v.  Hallock,  6  Wall.  556,  has  been  occasioned 
by  the  legislation  in  Indiana  since  the  decision  in  6  Wall. 
556.  In  support  of  this  view,  we  quote  from  State  v.  Davis, 
73  Ind.  360,  this  case  being  cited  by  respondents.  In  this 
case  the  court  say:  "It  is  undoubtedly  true,  as  appellees 
insist,  that  at  common  law  a  writ  issuing  from  a  court 
nmst,  in  order  to  be  entitled  to  be  considered  as  regular  and 
authentic,  be  attested  by  the  seal  of  the  court  from  whicli 
it  issued.  {Williams  v.  Vanneter,  19  111.  293;  State  v. 
Flemming,  66  Me.  142;  22  Am.  Rep.  552;  Wheaton  r. 
Thompson,  20  Minn.  196;  Reeder  v.  Murray,  3  Ark.  450.) 


Sec.  5]  Wkits  of  Summons  15 

The  case  of  Insurance  Co.  v.  Hallock,  6  Wall.  55G,  does  de- 
cide that  an  order  of  sale  issued  by  a  court  of  this  state  was 
void  because  not  attested  by  the  seal  of  the  court.  It  has 
also  been  held  by  this  court  that,  where  there  is  no  statute 
to  the  contrary,  a  writ  or  record  must  be  attested  by  the 
seal  of  the  court  from  which  it  comes.  (Jones  v.  Frost,  42 
Ind.  543;  Hinton  v.  Brown,  1  Blackf.  429;  San  ford  v.  Sin- 
ton,  34  Ind.  539.)  The  older  cases  did  hold  that  a  writ 
lacking  the  seal  of  the  court  was  absolutely  void,  but  there 
is  much  conflict  upon  this  point  among  the  modern  cases, 
many  of  them  holding  that  such  a  writ  is  not  void  but  mere- 
ly voidable.  Our  court  long  since  held  that  such  a  writ  was 
not  void.  It  is  true,  as  argued  by  appellees,  that  a  sum- 
mons so  clearly  defective  as  to  be  insufficient  to  confer  juris- 
diction cannot,  after  judgment,  be  so  amended  as  to  give 
jurisdiction.  If  a  summons  without  a  seal  be  conceded  to 
be  void,  then  there  can  be  no  amendment,  for  it  is  axiomatic 
that  a  void  thing  can  not  be  amended.  The  liberal  provis- 
ions of  our  statute  respecting  the  summons  would  take 
such  writs  from  under  the  old  common-law  rule,  even  if  it 
were  conceded  that  it  is  the  rule  which  must  be  adopted 
respecting  other  writs.  The  provisions  of  the  code  upon 
this  subject  are  contained  in  article  IV.,  and  the  provision 
which  directly  bears  upon  this  point  is  found  in  section  37, 
and  is  as  follows:  'No  summons  or  the  service  shall  be 
set  aside  or  be  adjudged  insufficient  where  there  is  sufficient 
substance  about  either  to  inform  the  party  on  whom  it  may 
be  served  that  there  is  an  action  instituted  against  him  in 
court.'  "  It  must  appear  as  conclusive  that  the  court  in 
this  case  would  have  held  the  summons  void  but  for  the 
statute  of  Indiana,  quoted  in  their  opinion.  This  case 
seems  to  us  to  be  strong  authority  for  holding  that,  but  for 
the  statute  of  Indiana  in  relation  to  the  essentials  of  a 
summons,  that  court  would  have  held  to  the  doctrine  con- 
tained in  6  Wall.  55G,  to-wit,  that  such  writs,  without  the 

seal  of  the  court  from  which  they  issued,  are  void. 

********** 

The  appellant  further  contends  that,  at  the  time  of  the 
issuance  and  service  of  the  summons  under  discussion,  Mon- 
tana was  one  of  the  Territories  of  the  United  States,  and 
for  this  reason  the  opinion  of  the  supreme  court  of  the 
United  States  in  6  Wall.  556,  is  decisive  of  the  question  as 


16  Trial  Pbactice  [Chap.  1 

to  the  validity  of  said  summons,  and  controlling  upon 
this  court  in  the  determination  of  this  question ;  and  relies 
upon  the  authority  and  reasoning  in  Sullivan  v.  City  of 
Helena,  10  Mont.  134.  We  are  of  opinion  that  this  posi- 
tion is  unassailable,  our  statute  being,  in  effect,  the  same 
as  that  of  Indiana  at  the  time  of  the  rendition  of  the  opin- 
ion in  6  Wall.  556.  This  reasoning  and  holding  do  not  in 
our  opinion,  contravene  section  119  of  our  Code  of  Civil 
Procedure,  which  provides  that  "the  court  shall  in  every 
stage  of  an  action,  disregard  any  error  or  defect  in  the 
pleadings  or  proceedings  which  shall  not  affect  the  sub- 
stantial rights  of  the  parties;  and  no  judgment  shall  be  re- 
versed or  affected  by  reason  of  such  error  or  defect."  This 
section  presupposes  an  action  pending,  of  which  the  court 
has  acquired  proper  jurisdiction,  and  we  are  not  passing  up- 
on the  powers  of  the  court  under  such  circumstances.  We 
hold  in  the  case  at  bar  that  the  summons — the  jurisdic- 
tional writ — under  the  law  and  decisions  in  force  and  con- 
trolling in  this  jurisdiction  at  the  time  of  its  issuance  was 
void,  because  not  issued  under  the  seal  of  the  court.  If 
this  case  involved  a  defective  process,  issued  subsequent 
to  summons,  and  the  acquiring  of  jurisdiction  by  the  court 
thereunder,  then  the  contention  of  respondents  that  such 
defect  or  irregularity  could  be  amended  or  disregarded 
might  be  urged  with  great  force.  Judgment  reversed  and 
cause  remanded,  with  directions  to  overrule  the  demurrer. 

Reversed.^ 
Harwood,  J.  and  DeWitt,  J.,  concur. 

iWliere  the  requisites  of  a  summons  or  other  writ  are  prescribed  by  consti- 
tution or  statute,  it  is  frequently  held  that  such  constitutional  or  statutory 
requirements  are  mandatory,  that  the  writ  is  void  without  all  of  them,  and 
that  the  want  of  any  one  cannot  be  supplied  by  amendment.  Gordon  v.  Bod- 
well,  (1898)  59  Kan.  51,  51  Pac.  906;  Sharman  v.  Huot,  (1898)  20  Mont. 
555,  52  Pac.  558. 


Sec.  5 J  Writs  of  Summons  17 

AMBLER  V.  LEACH. 

Supreme  Court  of  Appeals  of  West  Virginia.     1879. 
15  West  Virginia,  677. 

At  the  fall  term,  1869,  an  office-judgment  was  confirmed 
by  the  circuit  court  of  Wood  county  in  favor  of  James  M. 
Stephenson,  Thompson  Leach  and  K.  B.  Stephenson,  part- 
ners under  the  firm  name  and  style  of  Stephenson,  Leach 
&  Co.,  against  John  Council  and  J.  G.  Blackford  for  $310.- 
49,  with  interest  from  September  25,  1869,  till  paid,  and 
costs  of  suit.  *  *  *  Tiie  summons,  by  which  this  suit 
was  commenced,  was  as  follows: 
''State  of  West  Virginia. 

"To  the  Sheriff  of  Wood  County,  Greeting: 

''We  command  you  that  you  summon  John  Council  and 
J.  Gr.  Blackford  to  appear  before  the  judge  of  our  circuit 
court  for  W^ood  county  at  rules,  to  be  held  in  the  clerk's 
office  of  said  court,  on  the  first  Monday  in  August  next,  to 
answer  James  M.  Stephenson,  Thompson  Leach  and  K.  B. 
Stephenson,  partners  under  the  name  and  style  of  Steph- 
enson, Leach  &  Co.,  of  a  plea  of  debt  for  $301.75,  damages 
$20.00.    And  have  then  and  there  this  writ. 

"Witness,  William  H.  Hatcher,  clerk  of  our  said  circuit 

court,  at  the  court  house  of  said  county,  the   day 

of and  in  the year  of  the  State." 

*  *  *  At  the  time  this  judgment  was  rendered  J.  G. 
IMackford  owned  several  parcels  of  land  in  said  county, 
and  also  a  considerable  amount  of  personal  property.  On 
the  23rd  day  of  February,  1876,  he  conveyed  all  his  prop- 
erty, real  and  personal,  to  B.  Mason  Ambler,  trustee,  for 
the  jDayment  of  all  his  debts  ratably.  This  conveyance  was 
duly  recorded  the  same  day,  October  12,  1878,  that  this 
trustee  instituted  this  suit. 

In  his  bill  he  states  all  the  above  facts,  filing  with  it  a 
copy  of  the  record  in  this  common  law  suit,  a  copy  of  this 
execution  and  return  thereon  and  an  abstract  of  this  judg- 
ment from  said  judgment  lien  docket.  He  alleges  in  his 
bill  that  this  judgment  was  a  mere  nullity,  as  the  summons, 
which  was  the  commencement  of  the  suit,  was  not  dated 
and  was  not  signed  by  the  clerk.  But  says  that  it  being 
T.  P.— 2 


18  Trial  Practice  [Chap.  1 

claimed  to  be  a  valid  judgment,  and  being  on  the  judgment 
lien  docket,  it  is  a  cloud  on  the  real  estate  conveyed  to 
him  as  trustee,  and  prevents  his  selling  to  advantage  tlif 
real  estate  conveyed  by  said  deed,  as  he  is  thereby  author- 
ized and  directed  to  do.  *  *  *  The  two  Stephensons 
being  dead,  the  bill  makes  Okey  Johnson,  their  several 
executor,  Thompson  Leach,  J,  G.  Blackford  and  John  Con- 
nell  defendants,  and  asks  the  court  to  declare  said  judg- 
ment null  and  void.  *  *  *  The  court  by  its  final  decree 
*  *  *  dismissed  the  bill  and  decreed  that  the  plaintiff 
pay  to  said  defendants  their  costs  in  said  suit  expended. 
From  this  decree  the  plaintiff,  B,  M.  Ambler,  on  March 
22,  1879,  obtained  from  this  court  an  appeal  and  super- 
sedeas. 

Green,  President,  delivered  the  opinion  of  the  court: 
The  first  question  presented  by  this  record  is :  Was  the 
judgment  of  the  circuit  court  of  the  fall  term,  1869,  null 
and  void,  because  the  summons  in  the  suit  in  which  such 
judgment  was  rendered  was  blank  as  to  its  date,  and  be- 
cause it  was  not  signed  by  the  clerk  or  his  deputy?  The 
appellant's  counsel  claims  that  it  is  absolutely  void,  and 
should  be  so  pronounced  by  this  Court ;  while  the  appellees 
claim  that  it  was  only  voidable  by  plea  in  abatement,  or 
motion  to  quash  it  in  the  original  suit,  or  at  furthest  by 
having  the  judgment  set  aside  by  a  motion  by  the  defend- 
ants before  the  circuit  court  which  rendered  it,  or,  if  it 
refused,  by  a  writ  of  error  after  such  refusal  and  a  revers- 
al of  this  judgment  by  this  Court;  and  these  steps  not  hav- 
ing been  taken,  this  judgment  is  valid,  and  a  lien  on  the 
real  estate  of  the  defendant,  Blackford,  superior  to  the 
lien  created  by  said  deed  of  trust. 

*  *  *  In  some  of  the  States  their  constitutions  or  laws 
require  that  process  shall  be  signed  by  the  clerk  of  the  court, 
and  sealed  with  the  seal  of  the  court,  and  as  the  sealing  as 
well  as  signing  is  clearly  intended  for  the  like  purpose,  of 
autlienticating  the  process,  the  decision  as  to  the  effect 
of  omitting  to  attach  the  seal  of  the  court  I  regard  as  bear- 
ing directly  on  the  question  under  discussion  in  this  case. 
In  Maine,  where  the  process  has  to  be  under  the  seal  of  the 
'!0urt,  it  was  decided  that  a  writ  returnable  to  the  Supreme 
Judicial  Court,  wliirli  ought  to  have  had  the  seal  of  that 


Sec.  5]  Wkits  of  Summons  19 

Court  attached  to  it,  but  did  not  have,  was  to  be  quashed 
on  motion  of  the  defendant,  though  made  at  a  term  long 
subsequent  to  the  term  at  which  the  writ  was  returnable. 
The  court  say:  ''Upon  the  whole  we  regard  the  seal  as  a 
matter  of  su])stance,  and  the  process,  being  an  original 
ivrit,  not  amendable.  We  regret  that  the  defect  was  not 
pointed  out  at  an  earlier  stage  of  the  proceedings;  but  we 
are  not  satisfied  that  it  is  now  too  late  to  take  the  objection. 
We  do  not  abate  the  proceedings  so  much  for  the  sake  of 
the  defendants,  as  because  the  plaintiff  has  departed  from 
a  substantial  requirement  of  law  of  a  public  nature,  in 
bringing  his  action."  It  is  obvious  that  the  court  did  not 
regard  this  process  as  absolutely  null  and  void,  but  as  a 
voidable  process;  but  the  defect  being  a  substantial  one. 
the  defendant  was  not  confined  to  the  term  at  which  pro- 
cess was  returnable  to  make  his  motion  to  quash  this  pro- 
cess, but  was  allowed  to  do  so  long  afterwards.  Still  if  he 
had  permitted  a  judgment  to  be  entered  by  default,  the 
court  would  doubtless  have  held  this  judgment  valid.  All 
they  did  decide  was,  that  at  any  time  pending  the  case  he 
might  avoid  this  process ;  but  unless  avoided,  it  was  good. 
That  it  was  not  a  mere  nullity  and  absolutely  void  is 
shown  by  the  case  of  Sawyer  v.  Baker,  3  Greenl.  (8  Me.) 
29,  where  the  court  held  that  an  execution  issued  without 
the  seal  of  the  court,  which  the  law  required,  was  not  ab- 
solutely void,  but  might  be  afterwards  amended.  And 
this  decision  is  approved  in  the  case  of  Bailey  v.  Smith,  3 
Fairfield,  (12  Me.)  196.  So  in  Massachusetts.  Upon  a  plea 
in  abatement  to  a  writ,  that  the  seal  of  the  court  was  not 
attached,  the  court  held  the  plea  good  and  refused  to  per- 
mit the  writ  to  be  amended  by  attaching  the  seal.  Hall  v. 
Jones,  9  Pick.  446.  But  in  New  York  in  the  case  of  Pepron 
et  al.,  V.  Jenkins,  Coleman  &  Caine's  cases  60,  on  a  motion 
to  quash  a  writ,  because  not  signed  by  the  clerk,  the  court 
permitted  the  writ  to  be  amended  by  the  clerk's  then  sign- 
ing it.  Both  these  cases  evidently  treat  the  writ  as  not 
void,  but  as  voidable  only.  And  in  the  People  v.  Dunning, 
1  Wend.  16,  the  court  expressly  decide  that  an  execution, 
to  which  the  seal  of  the  court  was  not  attached  as  the  law 
requires,  was  not  void  or  a  nullity,  but  only  voidable,  and 
the  sureties  of  a  sheriff  were  held  liable  for  money  collected 
under  such  an  execution.    In  the  case  of  Stayton  v.  New- 


20  Trial  Practice  [Chap.  1 

comer,  1  Eng.  (Ark.)  451,  there  was  a  judgment  by  default 
on  a  writ  to  which  the  seal  of  the  court  was  not  attached. 
Upon  writ  of  error  this  judgment  was  reversed.  We  could 
not  from  this  infer  that  the  writ  was  a  mere  nullity,  but 
rather  the  reverse,  that  it  was  voidable,  and  was  avoided 
by  the  defendants  obtaining  a  writ  of  error.  But  Oldham, 
Judge,  in  delivering  the  opinion  of  the  court,  used  very 
strong  language  to  show  that  the  writ  was  a  mere  nullity. 
He  says,  ''this  writ  totally  fails  to  confer  any  jurisdiction 
over  the  person  of  the  appellant.  The  writ  being  unsealed 
is  a  mere  nullity,  and  as  such  imposes  no  legal  obligation 
upon  the  appellant  to  appear  and  defend  against  the  ac- 
tion. The  judgment  by  default  is  therefore  erroneous  and 
ought  to  be  reversed."  This  language  is  so  specific  that 
it  is  obvious  that  the  court  intended  to  hold  that  a  writ  to 
which  the  seal  of  the  court  was  not  attached,  was  an  abso- 
lute nullity,  unless  confirmed  by  the  defendant's  appear- 
ance. And  that  a  judgment  by  default  based  on  it  would 
also  be  null  and  void,  even  had  it  not  been  reversed  by  the 

Appellate  Court. 

********** 

In  Parson  v.  Sweft,  32  N.  H.  88,  the  court  decided  that, 
though  the  Constitution  of  New  Hampshire  expressly  pro- 
vides that  ''all  writs  shall  bear  the  teste  of  the  chief  jus- 
tice of  the  court,"  yet  a  writ  not  bearing  this  teste  was  not 
void,  but  only  voidable  by  motion  to  quash  made  at  the 
Ijroper  time  in  the  progress  of  the  suit.  The  court  say: 
"The  Constitution  of  this  State,  article  87,  provides  that 
all  writs  issuing  out  of  the  clerk's  office  in  any  court  of 
law,  shall  be  in  the  name  of  the  State  of  New  Hampshire, 
shall  be  under  the  seal  of  the  court  whence  they  issue,  and 
bear  teste  of  the  chief,  first  or  senior  justice  of  the  court, 
and  shall  be  signed  by  the  clerk  of  said  court,  yet  a  writ 
which  issues  without  the  proper  teste  is  not  in  terms  de- 
clared by  the  Constitution  to  be  void,  and  wo  think  it  is 
not  to  be  held  so  by  construction.  In  the  same  article  of 
the  Constitution  writs  are  required  to  be  signed  by  the 
clerk ;  but  a  writ  is  not  void  because  it  wants  the  signature 
of  the  clerk;  and  the  objection  will  be  overruled,  if  not 
seasona))ly  made.  LoveU  v.  Sahin,  15  N.  IT.  37.  In  Massa- 
chusetts, upon  tlie  construction  of  a  similar  provision  of 
their  Constitution,  it  has  been  decided  that  the  want  of  ? 


Sec.  5]  Writs  of  Summons  21 

propor  iesfe  is  mere  matter  of  form,  and  must  be  taken  ad- 
vantage of  by  seasonable  objection;  otherwise  it  will  be 
held  to  be  waived.  Ripley  v.  Warren,  2  Pick.  592.  In  this 
ease  the  want  of  a  proper  teste  did  not  make  the  writ  void. 
If  a  motion  to  quash  had  been  seasonably  made,  the  writ 
might  have  been  amended;  for  it  was  not  void,  and  the 
court  had  jurisdiction.  It  was  so  decided  in  Bcyuolds  v. 
Donnell,  not  reported.  The  ordinary  process  of  the  court 
never  in  fact  bears  the  actual  signature  of  the  chief  justice, 
but  his  name  is  printed  into  the  blank  writs  before  they 
are  delivered  out  of  the  clerk's  office.  The  teste  of  a  writ 
is  therefore  in  practice  a  mere  matter  of  form." 

Yet  in  HiitcJiins  v.  Edson,  1  N.  H.  139,  a  sheriff  was 
held  not  liable  for  the  escape  of  a  prisoner,  whom  he  held 
in  custody,  because  the  execution  under  which  he  held  him 
was  not  under  seal,  and  the  court  say:  "A  writ  not  under 
seal  is  not  process  warranted  by  law.  The  Constitution 
in  our  opinion  has  rendered  a  seal  essential  to  the  validity 
of  all  our  writs;  and  no  officer  can  justify  anything  done 
under  a  writ  of  execution  not  under  seal.  It  is  no  better 
warrant  for  arrest  than  a  piece  of  blank  paper."  Comment- 
ing on  this  case  the  court  in  Parson  v.  Sivett,  32  N.  H,  89, 
say:  ''The  general  language  used  in  that  case  might  tend 
to  the  conclusion  that  writs  of  mesne,  as  well  as  final,  pro- 
cess were  void,  unless  under  the  seal  of  the  court.  It  is  ob- 
vious, however,  that  there  is  an  important  distinction  be- 
tween the  two  kinds  of  writs,  because  to  a  writ  of  final  pro- 
cess the  defendant  has  no  opportunity  to  object,  by  plea  or 
motion  that  it  wants  a  seal  or  other  constitutional  requisite. 
It  may  perhaps  be  found,  when  a  case  shall  arise  which 
presents  the  question,  that  the  doctrine  of  Hidchins  and 
Edson  ought  not  to  be  extended  beyond  the  point  expressly 
decided.  Foote  v.  Knowles,  4  Mete.  586;  Brewer  v.  Lihhey, 
13  Mete.  175 ;  People  v.  Dunning,  1  Wend.  17 ;  Jackson  v. 
Broivn,  4  Cow.  550." 

There  has  been  in  the  State  of  Arkansas  a  very  large 
number  of  decisions  as  to  the  effect  upon  a  judgment  of  the 
writ  being  defective  in  almost  all  sorts  of  ways.  The  de- 
cisions at  first  were  quite  strong,  or  the  language  used  in 
them  strong,  to  indicate  that  for  many  of  these  defects  the 
judgments  would  be  void.    These  cases  were  all  reviewed 


22  Trial  Peactice  [Chap.  1 

however  in  Mitchell  v.  Conley,  8  Eng.  414,  and  the  court  on 
full  review  of  them  then  held  an  original  summons  not  run 
ning  in  the  name  of  tlie  State  is  not  void,  but  amendable,  and 
may  be  amended  after  plea  in  abatement  filed.  In  Rodcl. 
surv.  V.  Thompson  d  Barnes,  22  Ark.  363,  the  court  held  a 
writ  of  summons  is  not  void  for  want  of  the  official  seal 
of  the  clerk.  It  is  voidable  only  and  may  be  amended  on 
application  to  the  court;  but  if  no  application  to  amend 
has  been  made,  the  defect  is  ground  for  a  reversal  of  judg- 
ment by  default.  The  court  say:  ''It  has  been  the  practice 
of  this  court  to  reverse  judgments  by  default  in  cases  where 
the  summons  were  without  the  official  seal  of  the  clerk,  and 
such  writs  were  treated  as  void.  But  in  Mitchell  v.  Con- 
ley,  13  Ark.  418,  the  court  upon  review  of  its  previous  de- 
cisions held  that  they  were  not  void  for  such  defects,  but 
voidable,  and  the  court  below  possessed  the  power  to  amend 
them  on  application.  Here  no  application  was  made  to 
amend;  and  the  defect  in  the  writ  is  cause  of  reversal." 

The  authorities  we  have  cited  show  that  the  decided 
weight  of  authorit}^  is  against  holding  a  writ  absolutely 
void,  because  not  signed  by  the  clerk,  or  not  having  the  seal 
of  the  court  attached  to  it,  or  not  being  properly  attached, 
or  for  not  running  in  the  name  of  the  State,  even  where 
these  things,  or  any  of  them,  are  required  in  the  Constitu- 
tion; but  such  defects  in  a  writ  render  it  only  voidable. 
In  some  States  it  is  held  that  these  things,  or  most  of  them, 
are  so  much  a  matter  of  form,  that  no  advantage  can  be 
taken  of  them  except  by  a  plea  in  abatement,  or  by  a  mo- 
tion to  quash  made  at  the  proper  time.  Others  hold  that 
while  none  of  these  defects  render  a  writ  void,  or  the  judg- 
ment based  on  it  a  nullity;  yet  they,  or  some  of  them,  are 
such  defects  of  substance  that  the  writ  can  be  avoided 
by  motions  to  quash,  though  not  made  promptly,  and  where 
on  such  a  defective  writ,  at  least  where  some  of  these  de- 
fects exist,  a  judgment  by  default  is  obtained  against  the 
defendant,  it  will  be  ;feversed  on  writ  of  error.  But  no 
decision,  which  I  have  been  able  to  find,  holds  in  a  collateral 
proceeding  that  such  a  judgment  is  a  nullity.  It  is  true,  as 
we  have  seen,  that  some  of  the  judges  use  very  strong  lan- 
guage, from  which  we  m.ight  infer,  that  in  their  opinion  a 
judgment  by  default  based  on  a  wi-it  in  which  some  of  these 
defects  existed  was  an  absolute  nullitv;  but  we  are  liable 


Sec.  5]  Writs  of  Summons  23 

to  mistake  their  views,  as  in  none  of  the  cases,  we  have 
seen,  were  they  called  upon  to  decide  more  than  that  the 
judgment  might  be  reversed,  or  the  writ  quashed  on  mo- 
tion in  the  same  suit;  and  it  is  obvious  that  this  might 
properly  be  done,  though  the  judgment  was  not  a  mere 
nullity. 

In  this  case  the  defendants  in  the  common  law  suit  had 
a  summons  regularly  served  on  them  by  the  sheriff,  which 
on  its  face  showed  it  came  from  the  clerk's  office,  though 
not  signed  by  the  clerk.  It  was  served  on  the  2nd.  dav 
of  August,  1869,  and  required  them  to  appear  at  a  speci- 
fied time  to  answer  the  plaintiff's  demand.  It  is  true  the 
summons  was  not  dated,  but  the  law  required  that  a  writ 
should  be  returned  in  not  exceeding  ninety  days.  The 
defendants  knew  therefore  that  this  writ  had  been  issued 
at  sometime  within  the  preceding  ninety  days,  and  could 
not  therefore  have  supposed  it  was  issued  in  some  pre- 
ceding year,  as  has  been  suggested,  and  must  therefore 
have  known  at  what  specific  time  they  were  required  to 
appear  and  answer.  They  also  knew  in  what  court  to  an- 
swer from  the  face  of  the  writ,  and  at  what  particular 
time  to  answer.  It  does  seem  to  me  therefore  that  such  a 
writ  ought  not  to  be  regarded  as  an  absolute  nullity.  It 
was  no  doubt  very  defective  and  might  have  been  properly 
quashed;  but  as  it  really  gave  with  reasonable  certainty 
all  the  information  to  the  defendants  that  a  regular  and 
perfect  writ  would  have  done,  it  cannot  justly  be  regarded 
as  a  nullity. 

For  these  reasons  the  decree  of  the  circuit  court  of  Octo- 
ber 28,  1878,  *  *  *  dismissing  the  plaintiff's  bill  at  his 
costs,  must  be  affirmed.    *    *    * 

Decree  affirmed. 


24  Trial  Practice  [Chap.  1 

Section  6.    Indorsement  of  Amount  Claimed. 

ELMEN    V.    CHICAGO,    BURLINGTON    &    QUINCY 
RAILROAD  COMPANY. 

Supreme  Court  of  Nebraska.    1905. 

75  Nebraska,  37. 

Letton,  C.  This  action  was  brought  by  George  P.  El- 
men,  as  administrator  of  the  estate  of  Robert  Stewart, 
deceased,  to  recover  damages  for  the  widow  and  next  of 
kin  on  account  of  the  death  of  his  intestate,  which  lie  al- 
leges was  caused  by  the  negligence  of  the  defendant  rail 
road  while  the  deceased  was  working  in  its  Havelock  shops. 
*  *  *  *  On  July  17, 1901,  one  day  before  the  time  limited 
by  the  statute  for  the  beginning  of  an  action  for  death 
by  wrongful  act,  a  petition  was  filed  in  this  action  and  a 
summons  issued.  The  praecipe  for  the  summons  did  not 
ask  for  the  indorsement  of  any  amount  for  which  judg- 
ment would  be  taken  if  the  defendant  did  not  appear,  nor 
did  the  summons  which  was  issued  have  either  upon  its  face 
or  indorsed  thereupon  any  amount  for  which  judgment 
would  be  taken  in  such  case.  This  summons  was  duly  served 
upon  the  defendant  and  returned.  No  appearance  wa** 
made  and  no  default  was  entered.  On  February  10,  1902, 
the  plaintiff  filed  a  motion  requesting  to  be  permitted  to 
amend  the  praecipe  so  as  to  show  the  amount  for  whicli 
plaintiff  would  take  judgment,  in  case  of  default,  to  be 
$5,000,  that  the  clerk  be  directed  to  amend  the  original 
summons  by  indorsing  that  amount  upon  it,  and  that  an 
alias  summons  be  issued,  with  that  amount  indorsed,  re- 
quiring the  defendant  to  answer  on  or  before  March  17, 
1902,  and  that  the  amended  summons,  a  copy  of  the  mo- 
tion and  order  allowing  it,  and  the  alias  summons,  be 
served  upon  the  defendant  the  same  as  an  original  sum- 
mons. The  court,  by  an  ex  parte  order,  sustained  the  mo- 
tion. *  *  * 

*  *  *  We  have  repeatedly  held  that  no  judgment  can  be 
rendered  in  excess  of  the  amount  indorsed  upon  the  sum- 
mons in  case  of  default  in  an  action  where  the  only  relief 
sought  is  a  money  judgment.  Croivell  v.  Galloway,  3  Neb. 
215;  Roggencamp  v.  Moore,  9  Neb.  105;  Co-operative  Stove 


Sec.  6]  Writs  of  Summons  25 

Co.  V.  Grimes,  9  Neb.  123;  Forbes  v.  Bringe,  32  Neb.  757, 
The  plaintiff  in  error  contends  that  the  amendments  to  the 
summons  and  praecipe,  which  were  permitted  by  the  court, 
relate  back  to  the  time  of  the  issuance  and  service  of  the 
original  summons,  and  that  therefore  the  action  was  begun 
within  the  two  year  period,  while  the  position  of  the  rail- 
road company  is  that,  since  no  judgment  could  have  been 
rendered  for  any  amount  whatever  upon  the  summons  as 
it  was  when  issued  and  served,  an  amendment  which  gave 
to  the  writ  a  force  and  effect  of  which  it  was  entirely  devoid 
was  in  effect  the  beginning  of  a  new  action,  and  that,  in  such 
case,  if  the  bar  of  the  statute  had  fallen,  it  could  not  over- 
ride the  same.  We  have  been  cited  to  no  cases  directly  in 
point  in  either  this  or  any  other  jurisdiction.  This  court 
has  held  that  a  motion  to  amend  an  affidavit  for  attachment 
may  be  sustained,  even  though  a  motion  is  pending  to  quash 
the  writ  on  account  of  the  very  defect  which  it  is  sought  to 
cure  by  amendment.  Struthers  v.  McDowell,  5  Neb.  491; 
Rathman  v.  Peycke,  37  Neb.  384;  Moline,  Milburn  <&  Stod- 
dard Co.  V.  Curtis,  38  Neb.  520;  Dohry  v.  Western  Mfg. 
Co.  57  Neb.  228.  In  such  cases  the  amendment  relates 
back  to  the  issuance  of  the  writ  of  attachment.  The  gen- 
eral rule  is  that  irregular  or  voidable  process  may  be 
amended,  but  that  void  process  is  incapable  of  amend- 
ment. The  reasons  are  obvious.  A  void  writ  is  not  a 
writ,  and  an  amendment  which  would  give  such  a  writ 
force  and  effect  would  call  the  process  into  being  at  the 
time  of  the  so-called  amendment.  The  courts  of  other  states 
have  not  been  uniform  in  their  holdings  as  to  the  effect 
of  the  failure  to  include  an  ad  damnum  clause  in  a  sum- 
mons or  to  indorse  upon  the  back  of  the  writ  the  amount 
claimed,  where  required  by  statute.  See  Campbell  v.  Chaf- 
fee, 6  Fla.  724:;Kagay  v.  Trustees,  68  111.  75;  State  v.  Hood, 
6  Blackf.  (Ind.)  *260.  In  Ohio,  in  such  a  case,  it  was  held 
by  an  inferior  court  that  such  a  summons  could  be  amended, 
but  unless  appearance  were  made  the  amendment  would 
have  to  be  served.  Williams  v.  Hamlin,  1  Handy  95. 
While  in  another  such  court  in  the  same  state  it  was  held 
that  a  judgment  rendered  upon  the  service  of  a  writ  with 
no  amount  indorsed  was  erroneous,  but  not  void,  and  there- 
fore valid  and  subsisting,  since  not  directly  attacked,  Gil- 
lett  V.  Miller,  12  Ohio  C.  C.  214. 


26  Trial  Practice  [Chap.  1 

If  the  first  position  is  correct  the  latter  is  wrong.  Tho 
holdings  are  clearly  irreconcilable.  This  court,  however, 
in  an  early  case,  pointed  out  the  proper  procedure  and  in- 
dicated the  effect  of  such  an  amendment.  In  Watson  v. 
McCartney,  1  Neb.  131,  the  action  was  to  enforce  a  ven- 
dor's lien  upon  certain  lands.  The  summons  was  indorsed 
with  the  notice  required  in  cases  where  a  judgment  for 
money  only  is  sought.  The  defendants  did  not  appear, 
and  the  indorsement  was  by  leave  of  court  amended  so  as 
to  conform  to  the  nature  of  the  action,  and  judgment  was 
rendered  accordingly.  In  that  case  as  in  this  both  the 
praecipe  and  the  summons  were  defective  as  to  indorse- 
ment.    In  the  opinion  Judge  Lake  says : 

''So  well  am  I  satisfied  that  this  amendment  was  irregu- 
lar and  unwarranted,  that  I  have  not  undertaken  to  look 
into  the  cases  relating  to  amendments  cited  by  counsel  for 
the  defendant  in  error.  Although  cases  might  be  found 
to  support  such  a  proceeding  I  should  deem  it  unwise,  in 
the  settlement  of  the  practice  which  is  to  govern  in  the 
courts  of  this  state,  to  conform  to  precedents  of  that  char- 
acter. *****  jjad  the  defendants  appeared,  the 
amendment  might  have  been  made  by  order  of  the  court. 
The  office  of  the  notice  indorsed  on  the  summons  is  to 
advise  the  defendant  of  the  amount  claimed.  He  then  is 
at  liberty  to  consent  or  resist.  *****  tj^^  plain- 
tiff's course  was  to  take  judgment  for  the  amount  indicated 
in  the  notice,  with  interest  from  April  1,  1897.  If  he 
desired  a  further  or  greater  recovery,  he  should  have  ob- 
tained leave  and  issued  another  summons,  such  as  was 
proper  in  the  case."  See  also  Reliance  Trust  Co.  v.  Ather- 
ton,  67  Neb.  305;  Atchison,  T.  S  S.  F.  Ry.  Cc.  v.  Nicholls. 
8  Colo.  188,  6  Pac.  512. 

In  the  instant  case  the  summons  was  issued  in  all  re- 
spects in  conformity  with  the  praecipe  which  was  filed,  and 
in  conformity  with  law.  It  is  not  a  case  where  an  error 
has  been  made  by  a  clerk  of  the  court  or  other  officer. 
In  such  a  case,  as,  for  instance,  where  an  error  has  been 
made  in  the  date  of  the  return  day  of  the  summons  or 
the  answer  day,  we  have  permitted  amendments  to  be 
made,  and  such  amendments  relate  back  to  the  time  of  the 
issuance  of  the  summons.  Barker  Co.  v.  Central  West  In- 
vestment Co.  75  Neb.  43.     The  court,  in  such  case,  has 


Sec.  G]  Writs  of  Summons  27 

y^ower  to  prosprve  the  riglits  of  tlie  defendants  by  grant- 
ing such  additional  time  to  plead  as  may  be  necessary. 
In  such  cases,  the  defendant  is  fully  advised  of  the  nature 
of  the  judgment  which  is  sought  to  be  rendered  against 
him,  and  the  only  prejudice  which  he  can  suffer  is  being 
deprived  of  the  necessary  time  in  which  to  prepare  his  de- 
fense. The  case  here,  however,  is  different.  Upon  its 
face  the  summons  was  valid,  but  it  failed  in  anjnvise  to 
apprise  the  defendant  of  any  money  demand  against  it. 
No  sum  is  mentioned  either  on  the  face  or  upon  the 
back  of  the  writ.  This  being  the  case,  an  amendment  to 
the  praecipe  which  directs  the  clerk  to  indorse  a  sum  of 
money  upon  the  writ,  and  an  indorsemnt  of  the  same 
upon  the  summons,  the  defendant  not  being  in  court,  in- 
jects into  the  caF.e  a  liability  upon  the  defendant  to  which 
he  was  not  subject  when  the  writ  was  issued,  and  the 
effect  as  to  him  is  the  same  as  the  amendment  of  a  peti- 
tion by  setting  forth  a  new  cause  of  action,  or  the  issu- 
ance of  an  alias  summons.  The  defendant  may  have  been, 
and  evidently  was,  perfectly  satisfied  to  let  judgment  go 
against  him  upon  the  process  as  it  was  first  issued,  but,  when 
the  same  was  made  valid  and  effectual  to  charge  him  with 
a  money  judgment,  it  was  the  same  as  beginning  a  new 
action,  and  he  had  the  right  to  the  time  prescribed  by 
law  for  his  answer  after  the  indorsement. 

It  is  a  significant  fact  that  the  plaintiff  did  not  rely  upon 
the  amended  praecipe  and  summons  to  bring  the  defendant 
into  court,  but  procured  the  issuance  and  service  of  a  new 
summons,  fixing  the  answer  day  at  a  future  date.  Taking 
this  fact  into  consideration,  we  conclude  that  the  action  was 
begun  so  far  as  the  liability  for  the  amount  indorsed  upon 
the  summons  is  concerned,  at  the  time  the  amendment  was 
made  and  the  new  summons  issued.  If  during  the  interval 
between  the  issuance  of  the  summons  and  its  amendment, 
or  the  issuance  of  the  new  summons,  the  bar  of  the  statute 
of  limitations  has  fallen,  it  cannot  be  removed  by  an 
amendment  or  a  new  summons  which  virtually  begins  the 
action.  Since  the  bar  of  the  statute  had  fallen  at  the  time  of 
the  amendment  and  the  issuance  of  the  new  summons,  no 
right  of  action  existed,  and  the  judgment  of  the  district 
court  is  correct. 


28  Trim.  Practice  [Chap.  1 

We  recommend  that  the  judgment  of  the  district  court 
be  affirmed. 

Ames  and  Oldham,  CO.,  concur. 

By  the  court:     For  the  reasons  stated  in  the  foregoing 
opinion,  the  judgment  of  the  district  court  is 

A-ffirmed.^ 

iln  Lawton  v.  Nicholas,  (1903)  12  Okla.  550,  73  Pac.  262,  it  was  held 
(tyllabus  by  the  court):  "A  Bummons  in  an  action  for  the  recovery  of 
money  only  should  have  endorsed  thereon  the  amount  for  which  judgment 
will  be  rendered  if  the  defendant  fails  to  appear.  Summons  without  such  en- 
dorsement is  sufficient  to  give  the  court  jurisdiction  of  the  person  and  of  the 
subject  matter,  and  the  judgment  rendered  thereon  is  not  void,  but  voidable 
only,  and  execution  to  enforce  such  judgment  cannot  be  enjoined."  Follow- 
ing ELansas  cases. 


Section  7.    Alias  Writs. 

PARSONS  V.  HILL. 

Court  of  Appeals  of  District  of  Columbia,  1900. 

15  Appeal  Cases,  532. 

Mr.  Justice  Morris  delivered  the  opinion  of  the  Court: 
This  cause  comes  here  by  special  appeal;  and  the  ques- 
tion involved  in  it  is  one  of  considerable  importance  in 
the  practice  of  the  law  in  this  District  under  existing  con- 
ditions. 

On  November  2,  1896,  the  appellant,  Joseph  H.  Parsons, 
as  plaintiff,  instituted  a  suit  at  common  law  against  the 
appellee,  Alice  S.  Hill,  as  defendant,  in  the  Supreme  Court 
of  the  District  of  Columbia,  by  filing  a  declaration  in  as- 
sumpsit to  recover  from  the  appellee  the  sum  of  ten  thous- 
and dollars  which  he  claimed  to  be  due  to  him  for  profes- 
sional services  rendered  to  the  appellee  and  another  per- 
son in  the  matter  of  the  location  of  some  land  scrip.  This 
claim  was  set  forth  with  sufficient  minuteness  in  a  bill  of 
particulars  annexed  to  the  declaration,  which  itself  was  in 
the  common  counts,  but  which,  from  the  record  before  us, 
does  not  appear  to  have  been  supported  by  any  affidavit; 
and,  of  course,  no  affidavit  was  required,  except  for  the 
purpose  of  a  summary  judgment,  if  one  should  be  sought. 


Sec.  7]  Writs  of  Summons  29 

On  the  same  day  on  wliieh  the  declaration  was  filed,  a 
summons  was  issued  out  of  the  office  of  the  clerk  of  the 
court,  in  the  form  prescribed  by  the  rules  of  the  court,  re- 
quiring the  defendant  to  appear  in  court  on  or  before  the 
twentieth  day  after  service  of  the  writ,  to  answer  the  plain- 
tiff's suit,  and  to  show  cause  why  the  plaintiff  should  not 
have  judgment  for  his  cause  of  action.  This  summons, 
with  a  copy  of  the  declaration,  according  to  the  rules  and 
practice  of  the  court,  was  placed  in  the  hands  of  the  mar- 
shal for  seryice,  and  was  by  him  returned  to  the  clerk's 
office  on  November  25,  1896,  with  the  indorsement  thereon 
that  the  defendant  could  not  be  found.  It  is  understood 
that  she  was  absent  from  the  District  at  the  time,  and  out 
of  the  jurisdiction. 

Nothing  further  was  done  for  nearly  two  years.  On  Oc- 
tober 11,  1898,  a  second  summons  was  issued ;  and  this  was 
served  on  the  same  day  on  the  defendant,  and  was  returned 
by  the  marshal  into  the  clerk's  office  with  the  indorsement 
thereon:  "Served  copies  of  the  declaration,  notice  to  plead, 
affidavit,  and  this  summons  on  the  defendant  this  11th.  day 
of  October,  1898."  *    *    * 

*****  Qjj  November  2,  1898,  the  defendant,  by 
her  attorneys,  moved  to  vacate  the  second  or  alias  sum- 
mons issued  and  returned  in  the  cause,  on  the  ground,  a^ 
alleged,  "that  the  same  was  improvidently  issued,  since 
the  original  summons  issued  in  the  said  cause  was  not 
legally  and  duly  continued,  and  that  therefore  there  has 
been  a  discontinuance  of  the  said  cause."  This  motion  was 
allowed  by  the  court,  and  the  second  or  alias  summons  was 
accordingly  vacated. 

Thereupon  the  plaintiff,  by  his  attorneys,  moved  tlie 
court  to  direct  the  clerk  to  enter  upon  the  docket  continu- 
ances from  the  date  of  the  original  summons.  This  mo- 
tion was  denied.  Then  the  plaintiff  moved  for  a  judgment 
against  the  defendant  for  want  of  a  duly  verified  plea.  This 
motion  also  was  denied.     The  plaintiff  next  moved  for  a 

judgment  by  default;  but  this  motion  likewise  was  denied. 

********** 

*****  The  error,  if  any  there  was,  consisted  in  the 
order  to  vacate  the  second,  or  what  is  called  the  alias 
summons  in  the  case,  or  else  in  the  refusal  of  the  court 
to  direct  the  entry  of  continuances  as  preliminary  to  the 


30  Trial  Practice  [Chap.  1 

issue  of  a  second  or  alias  writ.  And  it  was  from  either  one 
or  both  of  these  orders  that  the  appeal  should  have  been 
sought. 

Yet,  under  the  special  circumstances  of  the  present  case, 
it  does  not  seem  to  us  that  the  ends  of  justice  or  any  good 
purpose  would  be  subserved  by  our  refusal  in  this  appeal  to 
consider  the  true  and  substantial  question  in  controversy 
between  the  parties.    *    *     * 

That  question  is,  whether,  when  a  declaration  in  a  suit 
at  common  law  has  been  filed  and  a  writ  of  summons  has 
been  issued  under  it  in  pursuance  of  the  existing  rules  of 
the  Suf)reme  Court  of  the  District  of  Columbia,  and  a  re- 
turn has  been  made  upon  that  writ  that  the  defendant  can- 
not be  found,  either  by  reason  of  absence  from  the  juris- 
diction or  for  some  other  cause,  and  no  further  proceeding 
is  had  in  the  case,  no  further  writs  issued  and  no  contin- 
uances entered,  until  nearly  two  years  afterwards,  when  a 
second  or  alias  writ  of  summons  is  issued  and  actually 
served  upon  the  defendant,  the  suit  has  become  abated  or 
discontinued,  and  the  plaintiff  is  compelled  to  have  recourse 
to  a  new  suit,  if  he  would  further  prosecute  his  cause  of 
action? 

Counsel  in  this  case,  with  admirable  ingenuity  and  in- 
cisive logic,  have  gone  to  the  very  foundations  of  the  com- 
mon law  on  the  subject  of  writs,  and  of  continuances,  and 
especially  of  proceedings  under  the  old  original  writ,  where- 
with, under  the  ancient  English  practice,  suits  in  the  Court 
of  Common  Pleas  were  always  begun.     *    *    * 

We  do  not  think  that  it  is  necessary  to  follow  counsel 
very  far  in  their  discussion  of  the  practice  under  the  old 
common  law.  The  original  writ,  by  which  all  civil  suits  in 
the  Court  of  Common  Pleas  in  England  were  formerly  com- 
menced, with  its  incidents  of  summons,  attachment,  dis- 
fringas,  distress  infinite,  and  outlawry,  was  never  in  force 
in  this  country,  either  during  the  colonial  period  or  since 
our  Declaration  of  Independence.  While  our  ancestors 
brought  with  them  from  England  not  only  the  substantive 
law  of  that  country,  so  far  as  it  was  suited  to  their  circum- 
stances, but  also  their  law  of  civil  procedure,  there  was 
never  any  place  in  our  system  for  tlie  original  writ.  From 
the  very  beginning  we  proceeded  upon  a  radically  differ- 
ent theory  of  jurisprudence  in  that  regard.     In  England, 


Sec.  7]  Writs  of  Summons  31 

the  sovereign  was  the  source  of  all  authority,  and  the  courts 
were  his  courts,  and  had  no  right  to  proceed  in  any  cause 
without  his  authority  and  permission.  It  was  the  princi- 
pal function  of  the  original  writ  to  give  that  permission. 
With  us,  on  the  contrary,  the  judicial  power  has  always  in 
fact  been  an  independent  co-ordinate  branch  of  govern- 
ment; and  the  Constitutions  adopted  after  the  Declaration 
of  Independence  only  recognized  and  emphasized  that  fact. 
It  never  required  any  special  license  or  authority  from 
any  executive,  by  way  of  original  writ  or  otherwise,  to  ex- 
ercise its  functions.  The  proceedings  in  England  under 
the  original  writ  are,  therefore,  no  safe  criterion  for  us 
in  our  practice. 

In  our  practice,  a  simple  writ  of  summons,  or  a  capias 
ad  respondendum,  a  form  of  proceeding  derived  to  us,  from 
the  English  King's  Bench,  was  the  usual  mode  for  the 
commencement  of  suits;  and  these  two,  which  were  in  form 
executive,  and  not  judicial  writs,  although  actually  issued 
by  the  courts,  took  the  place  of  the  old  original  writ.  But  in 
neither  practice  was  it  sought  to  have,  or  was  it  supposed 
that  there  could  properly  be,  any  pleadings  whatever,  until 
both  parties,  the  defendant  as  well  as  the  plaintiff,  were 
in  court;  and  the  plaintiff's  cause  of  action,  although  in  the 
summons  or  capias,  and  in  the  memorandum  or  praecipe 
given  to  the  clerk  of  the  court,  as  the  preliminary  to  the 
issue  of  the  process,  it  was  to  a  certain  extent  indicated, 
was  never  formerly  stated  in  the  shape  of  a  declaration 
until  after  the  appearance  of  the  defendant  in  court  in 
response  to  the  summons  or  capias. 

But  a  very  radical  departure  from  ancient  usage,  and 
from  the  former  usage  of  our  own  jurisdiction,  was  ef- 
fected, when,  by  the  Act  of  Congress  of  March  3,  1863, 
Chap.  91  (12  Stat.  762),  the  Supreme  Court  of  the  District 
of  Columbia  was  established,  with  power  given  to  it  in  the 
act  of  its  creation  "  to  establish  such  rules  as  it  might 
deem  necessary  for  the  regulation  of  the  practice  of  the 
several  courts  organized  by  the  act,  and  from  time  to  time 
to  revise  and  alter  sucli  rules;"  and  when,  soon  after  its 
organization,  it  accordingly  promulgated  new  rules  of 
pleading  and  practice  to  be  observed  in  the  conduct  of  legal 
proceedings  thereafter  to  bo  instituted  in  that  court.  The 
radical  character  of  these  rules  with  reference  to  the  ante 


32  Trial  Practice  [Chap.  1 

cedent  practice  is  well  recognized  by  counsel  in  the  state- 
ment advanced  in  argument,  that  if  their  validity  had  been 
properly  tested  in  due  time  after  their  promulgation,  thoy 
would  not  have  stood  the  ordeal  of  judicial  scrutiny.  But 
this  argument  is  not  further  insisted  on  than  in  the 
point  made  in  the  brief  of  counsel  for  the  appellee,  that 
rules  of  court  cannot  be  permitted  to  contravene  common 
right.  With  reference  to  this,  however,  it  is  sufficient  to 
say  here  that  ordinarily  there  can  be  no  such  thing  as  a 
common  right  in  the  retention  of  existing  rules  of  plead- 
ing and  practice.  Courts  have  made  these,  and  courts 
may  unmake  them,  especially  under  legislative  authority 
given  for  the  pur^Dose.  Alterations  in  the  code  of  civil 
procedure  must  be  assumed  to  have  been  made,  as  they  are 
no  doubt  always  intended  to  be  made,  for  the  better  admin- 
istration of  the  substantive  law,  and  not  to  impair  individ- 
ual right.  Certainly  the  change  in  the  civil  procedure  of  the 
District  of  Columbia  effected  by  tlie  promulgation  of  the 
rules  of  the  Supreme  Court  of  the  District  in  1863,  being  in 
line  with  the  general  modification  of  the  ancient  practice 
before  and  afterwards  effected  in  other  parts  of  our 
country,  and  now,  it  is  believed,  become  universal  through- 
out the  United  States,  can  not  well  be  said  to  be  antagon- 
istic to  common  right,  when  the  common  sentiment  every- 
where has  demanded  the  change. 

********** 

Under  these  rules,  as  thus  modified,  it  has  become  the 
settled  practice  for  the  marshal  to  make  return  of  all  writs 
of  summons  placed  in  his  hands  for  service  at  or  before  the 
('X})iration  of  twenty  days.  If  he  makes  actual  service  of 
the  writ,  he  returns  it  forthwith  with  the  indorsement  that 
he  has  so  served  it.  If  the  defendant  cannot  be  found, 
the  marshal  holds  the  writ  for  twenty  days  and  then  re- 
turns it  into  the  clerk's  office,  with  the  indorsement  thereon 
that  the  defendant  is  ''not  to  be  found."  In  either  case 
Ihe  writ  by  the  return  becomes  functus  officio.  In  the 
•3vent  tliat  it  has  not  been  served,  it  cannot  be  taken  out 
again  for  actual  service — a  new  writ  or  alias  must  be  re- 
sortcf]  to  for  tluit  ])nr))Ose.  Now,  the  question  is  presented 
A'hetiier,  under  the  rules  of  the  Supreme  Court  of  the  Dis- 
Irict  of  Columbia,  as  they  now  exist  and  as  they  existed 
when  the  present  proceedings  were  instituted,  in  order  to 


Sec.  7]  Writs  of  Summons.  3i1 

keep  a  suit  alive  and  to  prevent  a  discontinuance,  succes- 
sive ^^'Tits  of  summons  without  intermission  must  be  is- 
sued until  actual  service  is  had  upon  the  defendant,  each 
successive  writ  to  bear  teste  and  to  be  issued  on  the  date 
of  the  return  of  its  predecessor  into  the  office  of  the  clerk 
of  the  court. 

It  is  not  apparent  to  us  what  good  puriK)se  is  to  be  sub- 
served by  the  continuous  and  uninterrupted  issue  of  writs 
of  summons  in  periods  of  twenty  days,  when  they  cannot 
be  actually  served,  and  it  is  perfectly  well  known  to  the 
plaintiff  that  they  cannot  be  served,  on  account  of  the  ab- 
sence of  the  defendant  from  the  jurisdiction  or  for  some 
other  sufficient  cause.  A  rule  of  practice  that  would  re- 
quire such  continuous  issue  of  process  might  well  become 
an  intolerable  burden,  in  consequence  of  the  utterly  useless 
trouble  and  the  unnecessary  costs  to  which  the  parties  might 
be  put,  and  which  would  be  of  no  possible  benefit  to  anyone. 
Such  process  might  have  to  be  continued  for  years,  with 
the  result  merely  of  incumbering  the  clerk's  dockets  and  the 
records  of  the  courts  with  entries  of  conspicuous  inutility. 
When  a  defendant  has  gone  out  of  the  jurisdiction  within 
the  period  allowed  for  suit  by  the  Statute  of  Limitations, 
and  a  plaintiff  thereafter  has  brought  his  suit  in  due  time, 
in  order  to  prevent  the  accruing  of  the  bar  of  the  statute, 
as  he  is  undoubtedly  entitled  to  do,  there  would  be  neither 
justice  nor  sense  in  requiring  him  to  have  writs  constantly 
issued  periodically  until  the  defendant  returns.  The  time 
of  such  return  being  indefinite,  the  result  upon  litigation 
would  be  prohibitory.  "Wlien  the  plaintiff  is  a  trustee, 
executor,  administrator,  guardian,  or  something  of  the  kind, 
and  sues  in  his  representative  or  fiduciary  capacity,  and  it 
is  not  only  his  right,  but  perhaps  his  duty  to  sue,  which 
he  may  not  avoid  without  grave  responsibility,  a  very  grave 
burden  is  placed  upon  him,  and  a  very  great  impediment  is 
interposed  to  his  assertion  of  just  right,  if  he  is  compelled 
at  the  same  time  to  incur  the  penalty  of  indefinite  and 
interminable  costs  before  the  defendant  is  actually  served 
with  process.  We  cannot  think  that  the  law  requires  any- 
thing so  unreasonable. 

********** 

Undoubtedly,  as  opposed  to  the  useless  incumbrance  of 

unserved  and  unser^^able  writs  and  the  risk  of  liability  for 
T.  p.— 3 


34  Tbial  Practice.  [Cliap.  1 

indefinite  and  unascertainable  costs  on  the  one  side,  there 
is  the  danger  on  the  other  side  that,  if  snits  were  permitted 
for  a  long  time  to  lie  dormant  by  the  failure  to  have  notice 
given  to  defendants  when  such  notice  could  well  be  given, 
these  latter  might  be  greatly  and  wrongfully  prejudiced 
by  being  brought  into  court  long  after  the  subject  matter 
of  controversy  has  passed  out  of  their  minds,  when  perliaps 
witnesses  are  dead  and  testimony  lost,  and  yet  the  Statute 

of  Limitations  might  not  be  available  as  a  defense.    *    *    * 

********** 

The  suing  out  of  successive  writs  of  summons  at  inter- 
N'als  of  twenty  days,  each  writ  to  bear  teste  as  of  the  date 
of  the  return  of  its  predecessor  into  the  clerk's  office  by  the 
marshal,  is  the  only  mode  pointed  out  to  us,  and  apparently 
the  only  mode  that  can  be  pointed  out,  to  effect  the  actual 
continuance  of  process  in  the  present  case.  But  in  the  rules 
of  the  Supreme  Court  of  the  District  we  find  no  requirement 
for  any  such  continuance.  Those  rules,  in  fact,  are  entirely 
silent  on  the  subject;  and  we  are  apparently  remitted  to  the 
])ractice  of  the  common  law.  But  the  common  law  fur- 
nishes no  guide,  and,  in  our  opinion,  no  analogy  even,  for 
the  determination  of  such  a  case  as  the  present.  As  we 
have  seen,  the  practice  under  the  original  writ  in  England 
affords  no  analogy;  and,  as  we  think  has  been  sufficiently 
shown,  a  requirement  for  the  continuous  issue  of  suc- 
cessive writs,  when  those  writs  cannot  be  served,  is  un- 
reasonable. We  are  advised  that  the  usage  under  the  rules 
of  the  Supreme  Court  of  the  District  for  upwards  of  thirty- 
live  years,  that  is,  practically  during  the  whole  period  of  its 
existence,  has  been  to  the  reverse  of  the  contention  that  a 
continuous  issue  of  successive  writs  is  necessary  in  order  to 
keep  a  cause  alive,  when  the  first  writ  has  been  returned 
without  actual  service  on  the  defendant.  *  *  *  On  the 
contrary  the  ])ractice  has  been  quite  the  reverse — namely, 
that  after  the  return  of  the  first  writ  that  the  defendant  can- 
not be  found,  no  second  or  cdias  writ  is  required,  until  actual 
service  can  be  had.  And  that  this  has  been  the  practice,  we 
understand  to  be  conceded,  at  all  events  not  to  be  denied 
by  the  appellee;  and  it  seems  to  be  sufficiently  established. 
It  may  Ix;  that  this  ])ra('tice  or  usage  is  justly  amenable 
to  the  criticism  that  it  does  not  conform  to  the  rigid  rule 
of  continuity  and  to  the  doctrine  of  continuances  as  applied 


Sec.  7]  Writs  of  Summons.  35 

iu  the  old  common  law.  But  we  think  that  the  radical 
change  in  the  law  of  procedure  effected  by  the  rules  of 
the  Supreme  Court  of  the  District  had  the  effect  of  dispens- 
ing with  the  requirement  of  actual  continuances  in  tlie  mat- 
ter of  the  service  of  original  process  to  bring  a  defendant 
before  the  court,  after  one  writ  had  been  issued  and  re- 
turned without  effect;  and  that,  at  the  utmost,  all  that 
could  reasonably  be  required  in  such  a  case  would  be  the 
entry  of  fictitious  continuances  on  the  record  to  be  made 
whenever  a  writ  could  be  actually  issued  mth  effect,  in 
accordance  with  what  is  understood  to  have  been  the  prac- 
tice of  the  English  courts  in  analogous  cases.  The  making 
of  fictitious  entries,  however,  is  not  appropriate  in  our 
American  practice ;  and  it  is  understood  that  in  the  cases 
in  which  they  are  authorized  in  England,  they  are  wholly 
dispensed  wn^th  and  are  unnecessaiy  in  our  legal  procedure. 

We  are  not  to  be  understood  to  be  holding  that  the  law 
in  regard  to  continuances  is  not  yet  in  force.  On  the  con- 
trary, we  regard  it  as  yet  fully  in  force  in  many  cases ;  and 
it  has  been  so  held.  Gait  v.  Todd,  5  App.  D.  C.  350 ;  Crum- 
haugli  V.  Otterhack,  20  D.  C.  434;  Thompson  v.  Beveridge, 
3  Mackey,  170.  But  wherever  it  has  been  held  that  continu- 
ance is  necessary,  actual  continuance  is  meant.  There  is  no 
place  in  our  system  for  the  entry  of  fictitious  continuances. 
Nicholls  V.  Fearson,  2  Cranch  C.  C.  Rep.  526 ;  Banli  v.  Brent, 
2  Cranch  C.  C.  Rep.  538;  Baker  v.  French,  2  Cranch  C.  C. 
Rep.  539;  Thompson  v.  Beveridge,  3  Mackey,  170. 

But  the  usage  which  we  regard  as*  having  become  a  rule 
of  practice  under  the  code  of  rules  promulgated  by  the 
Supreme  Court  of  the  District,  has  its  limitations.  That 
usage  has  already  been  stated  to  be,  that  when,  upon  a 
declaration  at  common  law,  filed  in  that  court,  a  writ  of 
summons  has  been  issued,  and  has  been  duly  returned  by 
the  marshal  with  the  return  that  the  defendant  cannot  be 
found,  no  further  writs  are  required  to  be  issued  in  order 
to  keep  the  suit  alive,  until  the  defendant  can  actually  be 
found  and  a  writ  can  actually  be  ser\'ed  upon  him.  But 
it  follows  that,  when  the  defendant  can  be  found  and  the 
writ  can  actually  be  served  upon  him,  it  then  becomes  ne- 
cessary' to  follow  up  the  proceeding  by  the  issue  of  a  writ 
to  be  actually  served;  and  if  the  plaintiff  fails  to  have  a 


36  Trial  Practice.  [Chap.  1 

writ  issued  in  due  time  for  such  actual  sei-vice,  he  incurs 
the  risk  of  having  his  suit  discontinued. 

It  is  open  to  a  defendant,  when  service  of  process  has 
been  improperly  and  unduly  delayed,  to  show,  upon  a  mo- 
tion to  vacate  the  writ,  when  it  has  actually  been  issued, 
that  there  has  been  discontinuance  in  consequence  of  fail- 
ure to  have  it  issued  in  due  time.  The  writ  will  be  pre- 
sumed to  have  been  duly  issued  and  duly  served,  until  the 
contrary  is  shown;  but  actual  discontinuance  of  the  suit 
may  be  made  to  appear,  upon  affidavit  or  otherwise  to  the 
satisfaction  of  the  court.  And  when  such  actual  discon- 
tinuance has  been  made  to  appear,  the  court  may  properly 
vacate  the  writ  which  has  been  served  upon  the  defendant, 
and  discontinue  the  cause,  and  remit  the  plaintiff  to  a  new 

action,  if  he  chooses  to  avail  himself  of  it. 

********** 

Suits  at  common  law,  which  have  been  duly  commenced 
by  tlie  filing  of  a  declaration  and  the  issue  of  process 
thereunder,  cannot  thereafter  be  permitted  to  remain  indefi- 
nitely within  the  control  of  the  plaintiff  alone.  The  suit 
should  be  effectively  prosecuted  in  good  faith,  or  dismissed. 
Due  diligence  in  such  prosecution  is  an  essential  require- 
ment on  the  part  of  the  plaintiff.  If  that  due  diligence  is 
wanting,  effect  should  be  given  to  the  rule  of  law  that  works 
a  discontinuance  of  the  suit.  But  under  the  code  of  pro- 
cedure of  the  Supreme  Court  of  the  District,  that  ques- 
tion of  due  diligence  is  a  question  of  fact  to  be  shown  to 
the  court  by  the  proper  proof.  This  was  not  done  in  the 
present  case ;  and  we  think  that  it  was  error  to  vacate  the 
writ  without  such  proof. 

The  cause  will  be  remanded  to  the  Supreme  Court  of  the 
District  of  Columbia,  with  din^ctions  to  vacate  or  rescind 
the  order  vacating  the  alias  writ  of  summons  issued  in  the 
cause,  and  to  vacate  all  the  orders  and  proceedings  had  in 
the  cause  subsequent  thereto;  and  with  directions  further 
to  pemiit  the  defendant  to  renew  her  motion  to  vacate  said 
alias  writ,  if  slie  so  desires.^ 

1  In  Johnson  v.  Mead  (1885)  58  Mich.  70,  the  court  said:  "An  examina- 
tion of  the  authorities  will  show  that  the  continuance  roll  for  a  long  time 
came  to  he  ni^^.irdod  very  much  as  a  matter  of  form,  although  it  is  said  in 
Bonie  cases,  if  the  ol)ject  is  to  prevent  the  statute  of  limitations  from  run- 
ning, a  strict  compliance  should  Ixi  shown.  We  have  no  statute  upon  the 
suhject,  but  the  effect  of  continuing  the  suit  by  the  successive  issuing  of  writs 
has  always  been  regarded  as  an  arrest  of  the  running  of  the  statute  when 


Sec.  7]  Wkits  of  Summons  37 

done  in  good  faith  with  the  intent  of  prosecuting  the  suit.  Plowell  v.  Shepard, 
48  Mich.  472  *  *  *In  this  case  the  record  shows  the  longest  interval  between 
the  filing  of  one  writ  and  the  issuing  of  the  other  was  two  days;  and  inasmuch 
as  the  return  and  filing  of  the  one  was  precedent  to  the  issuing  of  the  other, 
we  Bee  nothing  unreasonable  in  the  time  taken  for  issuing  the  pluries  writ. 
It  must  be  regarded  as  sufficiently  regular  to  save  the  running  of  the  statute 
against  the  plaintiff 's  claim. ' ' 


CHAPTER  11. 
SERVICE  AND  RETURN  OF  SUMMONS. 

Section  1.    Personal  Service. 

McKENZIE  V.  BOYNTON. 

Supreme  Court  of  North  Dakota.    1910. 

19  North  Dakota,  531, 

FiSK,  J. 

When  the  owner  of  the  property  is  a  resident  of  this  state 
the  statute  requires  personal  service  to  be  made  on  him 
of  the  notice  of  the  expiration  of  time  for  redemption. 
It  is  respondent's  contention,  and  the  trial  court  so  held, 
that  the  stipulated  facts  fail  to  show  a  compliance  witli 
the  statute  in  this  respect.  In  this  we  think  they  are  cor- 
rect. It  is  not  contended  by  appellant  that  personal  service 
of  such  notice  was  in  fact  made ;  the  contention  merely  be- 
ing that  the  stipulated  facts  show  the  equivalent  of  per- 
sonal service.  In  this  they  are  in  error.  The  delivery  by 
the  sheriff  of  a  copy  of  such  notice  to  W.  J.  Freede,  an 
employee  at  the  Sheridan  House,  falls  far  short  of  personal 
service  upon  McKenzie.  For  all  that  is  contained  in  the 
alleged  proof  of  such  service  McKenzie  may  have  been 
actually  in  his  room  in  said  hotel  at  the  time  the  Sheriff 
left  with  said  employee  the  copy  of  the  notice.  The  personal 
service  required  by  the  statute  must,  we  think,  be  made  in 
the  manner  of  making  personal  service  of  a  summons  as  pro- 
vided by  section  6888.  Kev.  Codes  1905.  That  section  so 
far  as  applicable,  r(>ads  as  follows:  "The  summons  shall  be 
served  by  delivering  a  copy  thereof  as  follows;  *****  (7] 
III  all  other  cases,  to  the  defendant  personally,  and  if  the 
df'feiidant  cannot  conveniently  be  found,  by  leaving  a  copv 
tlierc'of  nt  liis  dwelliTig  house  in  the  presence  of  one  or  more 
of  his  family  over  the  age  of  fourteen  years;  or  if  the  de 
fondant  resides  in  the  family  of  another,  with  one  of  the 

88 


Sec.  1]  Service  and  Retuen  of  Summons  39 

members  of  the  family  in  which  he  resides  over  the  ago 
(if  fourteen  years.  Service  made  in  any  of  the  modes  pro- 
vided in  this  section  shall  be  taken  and  held  to  be  personal 
service.  *  *  *"  Plaintiff  had  no  family  nor  was  he  resid- 
ing in  the  family  of  another  within  the  meaning  of  the 
statute.  His  residence  was  at  a  public  hotel;  hence  the 
service  which,  under  the  statute,  would  be  valid  and  bind- 
ing on  him  could  be  made  only  by  delivering  to  him  per- 
sonally the  notice  required.  For  like  reasons  the  attempted 
substituted  service  by  registered  mail,  even  if  the  proof 
thereof  was  complete,  is  utterly  unavailing.  As  said  by  this 
court  in  Bank  v.  Holmes,  12  N.  D.  38,  94  N.  W.  764;  '^The 
term  'personal  service'  has  a  fixed  and  definite  meaning  in 
law.  It  is  service  by  delivery  of  the  writ  to  the  defendant 
personally.^  Other  modes  of  service  may  be  given  the  force 
of  such  service  by  legislative  enactment.  But  the  use  of  the 
words  'personal  service,'  unqualified,  in  a  statute  means 
actual  service  by  delivering  to  the  person,  and  not  to  a 
proxy"— citing  Hohhy  v.  Bunch,  83  Ga.  1,  10  S.  E.  113,  20 
Am.  St.  Rep.  301.  See  also  19  Encyc.  PI.  &  Pr.  613,  630  et 
seq. ;  32  Cyc.  448,  457,  and  cases  cited.  See  also  R.  I.  Hos- 
pital Trust  Co.  V.  Keencij,  1  N.  D.  411,  48  N.  W.  341.  *  *  * 


lln  the  absence  of  any  statutory  provision  on  the  subject,  it  was  held  in 
Ball  V.  Shattuck,  (1855)  16  111.  299,  that  personal  service  must  be  by  reading 
the  writ  to  the  defendant.  Delivery  of  a  copy  is  not  sufficient.  Law  v 
Grommes,  (1895)   158  111.  492,  41  N."E.  1080. 


KROTTER  &  CO.  V.  NORTON. 

Supreme  Court  of  Nebraska.    1909, 

84  Nebraska,  137. 

Epperson,  C. 

Plaintiff  instituted  an  action  in  equity  to  foreclose  a 
'■battel  mortgage  given  by  the  defendant,  G.  W.  Norton,  to 
])laintiff  upon  a  frame  dwelling  house  and  frame  barn  situ- 
ate on  land  in  the  possession  of  mortgagor  under  a  five 
year  lease.  The  mortgagor  and  his  wife  were  made  de- 
fendants, and  a  summons  was  issued  in  which  they  were 


40  Tkial  Peactice  [Chap.  2 

named  as  '*G.  W.  Norton  and  wife,  Mrs.  G.  W.  Norton." 
The  return  of  the  sheriff  showed  personal  service.  *  * 
*  *  *  Still  later  and  upon  default  of  defendants,  the  court 
rendered  a  decree  of  foreclosure,  and  directed  a  sale  of  the 
mortgaged  property  for  the  satisfaction  of  plaintiff's  debt. 
After  the  sheriff  had  sold  the  property,  but  before  confirma- 
tion, the  defendants  filed  an  application  to  set  aside  the 
sale,^  *  *  * 

Objection  is  made  that  there  was  no  personal  service  of 
summons  upon  Mrs.  Norton.     It  appears  from  the  testi- 
mony of  the  sheriff  that  the  summons  was  not  served  by 
the  actual  delivery  of  a  copy  thereof  into  the  hand  of  Mrs. 
Norton,  but  such  service  is  not  necessary  to  constitute  per- 
sonal service.    According  to  Mrs.  Norton's  own  testimony, 
we  are  convinced  that  there  was  personal  service  of  the 
summons  upon  her.     At  the  time   of  the  service   of  the 
summons  and  the  notice  of  application  for  injunction,  she 
testified  that  the  sheriff  came  to  their  home  and  into  the 
room  where  she  and  her  husband  were;  that  the  sheriff 
read  the  papers  aloud,  both  the  notice  and  the  summons,  in 
the  presence  of  both  defendants ;  that  she  heard  them  read ; 
that  the  sheriff  handed  the  two  papers  to  her  husband, 
saying  one  of  them  was  for  the  husl)and  and  one  for  the 
wife ;  that  she  knew  that  there  was  a  paper  left  there  for  her, 
and  that  she  was  named  therein  as  the  wife  of  George  W. 
Norton.  At  the  time  Mrs.  Norton  told  the  sheriff  that  she  did 
not  know  what  he  summoned  her  for;  that  she  did  not  sign 
any  papers,  nor  have  any  dealings  with  the  plaintiff.    Her 
testimony  is   corroborated   by   her   husband,   also  by  the 
sheriff,  except  the  latter  testified  that  he  laid  the  papers  in- 
tended for  Mrs.  Norton  upon  the  table,  at  which  she  was 
employed  all  the  time  he  was  there,  attending  to  the  break- 
fast dishes.     As  we  view  it,  it  is  immaterial  whether  the 
sheriff  laid  the  papers  intended  for  Mrs.  Norton  upon  the 
table  or  handed  them  to  her  husband.    Whichever  it  was,  it 
was  done  in  Mrs.  Norton's  presence,  with  full  knowledge 
on  her  part  that  one  of  the  copies  of  each  paper  was  in- 
tended for  her.    She  so  understood  it,  and  was  as  fully  in- 
formed as  tliough   the   sheriff  had   actually  delivered  the 
papers  into  her  own  hands.    This  is  clearly  distinguishable 

1  Thi'^  was  ajijiarc'iitly  (jratitefl,  though  the  report  does  not  expressly  say  so, 
and  the  appeal  was  taken  from  this  order. 


Sec.  Ij  Service  and  Retubn  of  Summons  41 

from  Holliday  v.  Brown,  33  Neb.  657,  in  which  it  appears 
that  the  wife  was  not  present,  and  knew  nothing  of  the  at- 
tempted service  of  the  summons  upon  her.  If  the  actual 
delivery  into  the  hand  of  a  defendant  is  necessary  to  consti- 
tute personal  service,  one  might  effectively  and  forever 
avoid  service  of  process  by  refusing  to  disclose  her  true 
name,  and  by  refusing  to  take  a  copy  of  a  summons  into  her 

hands. 

********** 

We  recommend  that  the  judgment  of  the  district  court  be 
reversed. 

By  the  Court:  For  the  reasons  given  in  the  foregoing 
opinion,  the  judgment  of  the  district  court  is  reversed  and 
this  cause  remanded  for  further  proceedings. 

Reversed. 


BOGGS  V.  INTER-AMERICAN  MINING  AND  SMELT- 
ING COMPANY. 

Court  of  Appeals  of  Maryland.    1907. 

105  Maryland,  371. 

ScHMucKER,  J.,  delivered  the  opinion  of  the  Court. 

The  first  of  the  cross  appeals  in  this  case  is  by  William 
R.  Boggs,  the  plaintiff  below,  from  an  order  of  the  Super- 
ior Court  of  Baltimore  City  striking  out  upon  terms  a 
final  judgment  theretofore  rendered  in  his  favor  against 
the  Inter- American  Mining  and  Smelting  Company.  *  *  * 

Tliie  Mining  Company  was  incorporated  in  the  District 
of  Columbia,  but  for  some  time  prior  to  March  7th,  1906, 
its  office,  where  its  records  were  kept  and  from  which  its 
general  business  was  transacted  was  in  the  Calvert  Build- 
ing in  Baltimore,  and  during  that  time  H.  C.  Turnbull,  Jr., 
who  did  business  in  Baltimore  City  and  resided  in  Balti- 
more County,  was  president  of  the  corporation.  During 
the  time  that  the  company  was  thus  located  in  Baltimore 
City,  its  president,  purporting  to  act  in  its  behalf,  em- 
ployed the  plaintiff,  Boggs,  as  a  mining  engineer  at  a  sal- 
ary of  $200  per  month  and  personal  and  traveling  expenses. 


42  Trial  Practice  [Chap.  '2 

On  Ma}^  28th,  1906,  Boggs  sued  the  company  in  the  Su- 
perior Court  to  recover  his  salary  and  expenses  for  Octo- 
ber, November,  and  December,  1905,  and  January,  1906, 
amounting  in  the  aggregate  to  $1,188.  The  suit  was  brought 
under  and  in  conformity  to  the  Rule  Day  Acts  in  force  in 
Baltimore  City,  and  the  defendant  having  been  returned 
summoned,  and  having  failed  to  appear  to  the  action  or 
plead,  judgment  by  default  was  entered  against  it  on  June 
27th,  1906.  On  the  same  day  the  judgment  by  default  was 
duly  extended  for  $1,188  and  costs. 

*****  P.  M.  Gober,  a  deputy  sheriff  of  Baltimore 
City,  then  testified  that  having  been  directed  to  serve  the 
writ  in  the  case  upon  Mr.  Turnbull  he  went  over  to  the 
Calvert  Building  and  asked  Turnbull  if  he  was  one  of  the 
officers  of  the  company,  and  he  replied  that  he  was  not,  but 
had  formerly  been  its  president.  To  the  best  of  witness' 
recollection  Turnbull  said  that  he  knew  the  plaintiff  Boggs 
and  would  like  to  see  him  get  what  was  due  him.  The 
deputy  reported  this  interview  to  the  sheriff,  who  told  him 
to  serve  the  writ  on  Turnbull,  as  he  was  one  of  the  directors 
and  the  deputy  went  back  to  do  it  but  Turnbull  shut  the  door 
in  his  face  and  would  not  let  him  serve  it.  The  deputy  fur- 
ther swore  that  he  explained  his  object  to  Mr.  Turnbull  and 
the  latter  saw  the  writ,  and  said  he  was  doing  what  he 
could  to  get  Mr.  Boggs  righted  in  the  matter,  or  something 
to  that  effect.  He,  the  deputy,  did  not  read  the  writ  to  Mr. 
Turnbull,  but  he  explained  it  to  him  and  Turnbull  looked 
at  the  writ. 

Thatcher  Bell,  another  deputy  sheriff,  testified  that  he 
was  told  by  the  sheriff  to  go  over  to  the  Calvert  Building 
and  serve  the  writ  on  Mr.  Turnbull,  that  Gober  had  not 
been  able  to  get  a  service.  Witness  went  over  to  Turn- 
hull's  office  with  the  copies  ready  to  serve  and  said  to 
Turnbull,  '*!  have  a  paper  to  serve  on  you."  Turnbull 
said,  "I  know  what  you  have,"  and  started  to  go  out.  Wit- 
ness reached  for  Turnbull  with  the  copies  and  when  the 
latter  kept  running,  he  commenced  to  read  them,  but  Turn- 
bull  got  into  the  next  room  and  slammed  the  door.  Witness 
then  laid  the  copies  on  the  table  and  returned  to  the  sher- 
iff's office.  He  left  the  copies  of  the  narr.,  notice  to  plead, 
anil  wi'il  in  this  case  on  the  table  in  Turnbull's  office.  Mr. 


Sec.  1]  Service  and  Retuen  ob  Summons  43 

TurnbuU  was  put  on  the  stand  and  his  account  then  given 
of  the  vists  of  the  two  deputy  sheriffs  to  him  substantially 
corrofDorated  tlieir  testimony  except  he  denied  that  he 
said  to  the  deputy  Bell  that  he  knew  what  he  had  or  that 
he  (TurnbuU)  saw  or  looked  at  the  writ.  There  was  also 
evidence  tending  to  show  that  Mr.  TurnbuU  never  reported 
the  service  of  the  writ  on  him  to  the  company  or  took  any 
steps  himself  looking  to  a  defense  of  the  action,  and  that 
the  motion  had  been  promptly  made  by  the  company  when 
it  learned  of  the  suit  and  judgment. 

Assuming  that  TurnbuU  was  a  proper  person  upon  whom 
to  serve  the  writ  and  other  papers,  we  are  indisposed 
to  consume  much  time  in  discussing  the  sufficiency  of  the 
service.  It  is  apparent  from  the  evidence  that  TurnbuU 
was  fully  informed  as  to  the  institution  of  the  suit  by  Boggs 
against  the  company  and  the  desire  of  the  sheriff  to  sum- 
mon the  company  b}-  serving  the  papers  on  him  as  one  of 
its  directors  and  knew  that  the  deputy  was  about  to  make 
that  service  when  he  attempted  to  elude  him  and  evade  the 
service  by  running  out  of  the  room  and  slamming  the 
door  in  the  officer's  face.  Neither  he  nor  the  company 
he  represented,  if  he  did  represent  it  for  the  purpose  of  the 
service,  can  be  permitted  to  set  up  such  a  state  of  facts  in 
support  of  the  motion  to  strike  out  the  judgment.  He 
might  as  well  have  remained  in  his  office  and  put  his  fingers 
in  his  ears  while  the  deputy  read  the  writ  to  him,  and  then 
claim  to  be  without  information  as  to  its  contents  or  pur- 
pose. Defendants  have  frequently  sought  to  evade  or  de- 
feat service  of  process  upon  them  by  flight  or  refusal  to 
accept  the  process  handed  them  by  the  serving  officer 
but  the  courts  have  held  such  efforts  futile.  Davison  v. 
Baker,  24  How.  Prac.  42;  Slaught  v.  Bobbins,  13  N.  J.  L. 
349 ;  Borden  v.  Borden,  63  Wis.  377;  Baker  v.  Carrecton,  32 
Me.  334. 

The  laws  of  this  state  do  not  prescribe  precisely  how  a 
summons  shall  be  served  upon  an  individual  defendant. 
The  service  must  be  a  personal  one,  2  Poe,  Pleading  and 
Practice,  section  62,  but  the  sheriff  is  not  required  to  read 
the  writ  to  the  defendant,  although  it  is  usual  for  him  to 
read  it  or  explain  its  nature  and  leave  a  copy  of  it  with 
the  person  served.  Sees.  409  to  412  of  Art.  23  of  the  Code 
provide  for  service  of  process  upon  corporations. 


44  Trial  Peactice  [Chap.  2 


*****  The  court  below  in  our  opinion  acquired  juris- 
diction over  the  defendant  in  this  suit  by  the  service  of  the 
process  upon  its  resident  director,  Mr.  TurnbuU. 

Order  striking  out  the  judgment  reversed  with  costs. 


Section  2.    Substituted  Service. 
BARWICK  V.  ROUSE. 

Supreme  Court  of  Florida.    1907. 
53  Florida,  643. 

Cockrell,  J. :  The  action  is  in  assumpsit  on  promissory 
notes  and  the  return  of  the  sheriff  upon  the  summons  ad  re- 
spondendum is  as  follows:  "The  within  summons  came  to 
hand  this  21st  day  of  February,  1906,  J.  W.  Smith,  sheriff, 
and  executed  on  the  22nd.  day  of  February,  1906,  by  de- 
livering a  true  copy  on  Mrs.  Melvina  Barwick,  the  wife  of 
the  within  named  Jnraes  M.  Barwick,  this  24th  day  of  Feb- 
ruary, 1906.  J.  W.  Smith,  Sheriff  of  said  Wakulla  couniy, 
Fla."  The  summons  was  returnable  March  5,  1906,  on 
which  day  a  default  for  want  of  appearance  was  entered, 
reciting  that  service  was  had  February  24th.  On  the  April 
rules,  no  alias  summons  having  been  issued,  a  judgment 
final  was  entered  reciting  that  the  defendant  had  failed  to 
appear  at  the  March  rules,  and  had  further  failed  to  plead, 
answer,  or  demur. 

The  question,  therefore,  is,  does  the  return  of  the  sheriff 
show  sufficient  service  upon  James  M.  Barwick,  to  bring 
him  into  court  in  invituni,  there  being  no  amendment  or 
offer  to  amend  the  return  and  tliere  being  nothing  in  iiie 
return  of  a  voluntary  appearance?  Aa  ancillary  thereto 
it  may  be  asked  if  the  defects  are  such  as  to  avail  upon  this 
appeal. 

Undoubtedly  if  the  actual  date  of  the  service  on  Mrs. 
Barwick  was  the  24th  day  of  February,  as  recited  by  the 
clerk,  it  was  too  late  for  the  return  day  of  the  summons,  it 


Sec.  2]  Service  and  Retuex  of  Summons  45 

not  being  '' served  at  least  ten  (10)  days  before  the  rule 
day."  This,  however,  is  not  a  fair  construction  of  the 
language;  it  is  evident  that  the  service  was  made  on  the 
22nd.,  while  the  return  was  endorsed  on  the  24th. 

The  serious  defect,  however,  is  in  the  statement  of  the 
manner  and  place  of  service.  The  statute,  Revised  Sta- 
tutes of  1892,  section  1015,  provides  that  "service  of  the 
original  writ  or  summons  shall  be  effected  by  reading  the 
writ  or  summons  to  the  person  to  be  served  or  by  delivering 
him  a  copy  thereof  or  leaving  such  copy  at  his  usual  place 
of  abode  with  some  person  of  the  family  above  fifteen 
years  of  age,  and  informing  such  person  of  the  contents 
thereof."  A  cursory  inspection  of  the  return  will  disclose 
several  particulars  wherein  this  statute  was  not  complie^^ 
with.  Service  was  not  made  upon  the  person  to  be  served, 
but  a  copy  was  delivered  to  his  wife ;  where  such  copy  was 
delivered  does  not  appear;  non  constat  the  sheriff  may 
have  met  her  in  Georgia,  where  she  was  living  apart  from 
her  husband,  and  not  "at  his  usual  place  of  abode  in  Wak- 
ulla county,  Florida,  with  some  person  of  his  family  above 
fifteen  years  of  age."  It  does  not  necessarily  follow  that 
because  Mrs.  Melvina  Barwick  is  the  wife  of  James  M.  Bar- 
wick  that  she  is  a  member  of  his  family  at  his  usual  place  of 
abode  and  above  fifteen  years  of  age.  Again,  when  an- 
other than  the  defendant  himself  is  served,  the  law  is  not 
satisfied  by  merely  delivering  a  true  copy  of  the  writ.  It  is 
further  required  that  such  other  person  be  informed  of  the 
contents  tliereof.  This  provision  is  not  mere  idle  words, 
but  is  founded  wisely,  and  must  be  given  effect. 

We  do  not  intend  to  hold  that  every  criticism  we  have 
made  upon  this  return  is  separtely  to  be  taken  as  a  decision 
that  the  defect  pointed  out  would  necessarily  render  the 
judgment  void  upon  collateral  attack,  but  there  is  a  duty 
upon  those  charged  with  the  entry  of  judgments  before  a 
clerk  to  see  that  there  has  been  at  least  substantial  com- 
pliance with  the  statute  necessary  to  bring  the  defendant 
into  court.  We  do  hold  that  the  return  here  is  fatally  de- 
fective and  that  tlie  judgment  based  thereon  will  be  set 
aside. 

The  defendant  lias,  however,  subjected  himself  to  tlie 
jurisdiction  of  the  court  by  prosecuting  this  writ  of  error, 
and  further  process  is  as  to  him  unnecessary. 


46  Trial  I^ractice  ,  [Chap.  2 

The  other  assignments  will  not  be  considered. 
The  judgment  is  reversed. 

Shackleford,  C.  J.,  and  Whitfield,  J.,  concur. 
Taylor,  Hooker,  and  Parkhill,  J  J.,  concur  in  the  opin 
ion. 


Section  3.    Constructive  Service. 

HARNESS  V.  CRAVENS. 

Supreme  Court  of  Missouri.    1894. 

126  Missouri,  233. 

The  plaintiff  lived  in  Barton  county;  had  lived  there 
some  seventeen  years,  having  previously  lived  in  Newton 
county  five  years  or  more  on  a  farm,  all  in  cultivation.  That 
farm  consisted  of  a  piece  of  ground,  to-wit:  The  south- 
west quarter  of  the  northeast  quarter,  and  the  west  half 
of  the  southeast  quarter,  less  ten  acres  off  the  west  side 
thereof  (seventy  acres)  all  in  section  7,  township  24,  range 
29.     The  portion  in  litigation  is  the  seventy  acres,  which 

has  a  house  and  orchard  on  it. 

********** 

In  March,  1889,  Harness  paid  the  taxes  on  the  land  for 
the  year  1888,  and  took  a  recipt  therefor,  from  Gracy,  the 
collector  in  the  tax  suit  controversy,  and  when  in  the  col- 
lector's office  on  that  occasion,  Harness  says  he  "called 
for  all  the  taxes  against  the  land."  That  suit  was  begui» 
September  14,  1889,  and  was  for  the  taxes  on  the  lana  lor 
the  year  1886,  a  duly  certified  tax  bill  accompanying  the 
petition,  which  alleged  defendant  to  be  a  non-resident  of 
the  state.    An  affidavit  as  to  non-residency  was  also  made. 

On  the  filing  of  the  petition  a  summons  was  issued,  and 
the  sheriff  having  returned  non  est  on  the  writ,  publication 
was  made,  etc.  Judgment  was  rendered  in  the  suit  thus  insti- 
tuted, July  11, 1891.  Execution  was  issued  August  24,  1891, 
and  on  September  24  next  thereafter  a  sale  of  the  land  in 
controversy  occurred,  at  which  the  defendant  became  the 
purchaser  at  the  i»vir'f  of  twenty-five  dollars. 


Sec.  3]  Seevice  and  Return  of  Summons  47 

On  hearing  of  the  sale  of  his  land,  plaintiff  applied  to 
defendant  for  permission  to  redeem  it,  but  defendant  re- 
fused to  do  so,  whereupon  plaintiff  instituted  the  present 
proceeding,  in  January,  1892,  to  cancel  the  sheriff's  deed 
made  to  defendant  as  aforesaid,  as  a  cloud  on  plaintiff's 

title  and  for  other  and  further  relief. 

********** 

Sherwood,  J. — 1.  As  appears  from  the  record  in  this 
cause,  the  plaintiff  herein,  the  defendant  in  the  back  tax 
suit,  was  proceeded  against  as  a  non-resident  of  the  state. 
The  petition  alleged  his  non-residence  and  so  did  the  ac- 
companying affidavit.  But,  instead  of  taking  out  an  order 
of  publication  before  the  clerk  in  vacation  as  authorized  by 
section  2022,  Revised  Statutes,  1889,  a  summons  was  issued 
to  Harness  returnable  to  the  next  November  term.  That 
summons  was  returned  non  est,  October  25,  1889.  This 
non  est  return  was  followed  by  an  order  of  publication 
based  on  that  return,  and  then  judgment  by  default  took 
place  at  the  May  term,  1891,  followed  by  a  sale  and  sher- 
iff's deed  to  defendant  Cravens,  September  24,  1891. 

As  will  be  seen  by  sections  2013  and  2023,  Revised  Stat- 
utes, 1889,  a  summons  in  such  cases  is  only  authorized  to 
issue  against  a  resident  defendant.  And  it  is  provided  in 
section  2024  that  when  summons  has  been  properly  issued 
and  return  of  non  est  made  thereon,  then  the  court,  being 
first  satisfied  that  the  defendant  cannot  be  found,  makes 
an  order  of  publication  as  required  in  section  2022.  Of 
course  such  an  order  of  publication  made  in  the  circum- 
stances mentioned  would  recite,  among  otL  things,  the 
issuance  of  the  summons,  and  the  fact  that  the  defendant 
could  not  he  found,  etc. ;  because  the  court  could  not  make 
this  class  of  publication  unless  "in  conjunction  with  the 
return,"  and  it  must  be  "founded  thereon."  State  ex  rel. 
V.  Finn,  87  Mo.  310.^ 

iThe  statutes  involved  are  as  follows:  "Sec  2022.  Orders  of  Publication. 
— In  suits  in  partition,  divorce,  attachment,  suits  for  the  foreclosure  of 
mortgages  and  deeds  of  trust,  and  for  the  enforcement  of  mechanics'  liens, 
and  all  other  liens  against  either  real  or  personal  property,  and  in  all  actions 
at  law  or  in  equity,  which  have  for  their  immediate  object  the  enforcement 
or  establishment  of  any  lawful  right,  claim  or  demand  to  or  against  any  real 
or  personal  property  within  the  jurisdiction  of  the  court,  if  the  plaintiff  or 
other  person  for  him  shall  all(?ge  in  his  petition,  or  at  the  time  of  filing  the 
same,  or  at  any  time  thereafter  shall  file  an  affidavit  stating,  that  part  or  all 
of  the  defendants  are  not  residents  of  the  state,  or  is  a  corporation  of  another 
state,  kingdom  or  country,  and  cannot  be  served  in  this  stat«  in  the  manner 


48  Teial  Practice  [Chap.  2 

So  that  here  we  have  presented  a  defendant  sued  as  a 
'lon-resideni ,  summons  issued  against  him  as  a  resident, 
and  publication  issued  against  him  as  a  resident  who  could 
not  he  found.  In  short,  the  order  of  publication  was  a  clear 
departure  from  the  allegations  of  the  petition  and  affidavit. 
The  issuance  of  the  summons  was,  therefore,  unwarranted 
by  the  statute,  and  the  publication,  being  based  thereon, 
necessarily  partook  of  the  writ's  inceptional  infirmity,  and 
this  is  so,  because,  in  the  language  of  Mr.  Justice  Field, 
"the  court  is  not  authorized  to  exert  its  power  in  that  way." 
Windsor  v.  McVeagh,  93  U.  S.  283. 

This  doctrine  is  abundantly  established,  that,  where  a 
mode  of  securing  jurisdiction  differing  from  that  of  the 
common  law  is  prescribed  by  statute,  nothing  less  than  a 
rigid  and  exact  compliance  with  the  statute  is  an  indispen- 
sable requisite  to  obtaining  jurisdiction,  1  Elliott's  Gen. 
Prac,  sec.  247.  Thus  in  Granger  v.  Judge,  4:4:  Mich.  384, 
Campbell,  J.,  says : 

''Where  cases  and  proceedings  are  not  according  to  the 
usual  course,  and  are  special  in  their  character,  they  are 
held  void  on  slighter  grounds  than  regular  suits,  because 
the  courts  have  not  the  same  power  over  their  records  to 
correct  them.  So,  where  there  has  been  no  personal  service 
within  the  jurisdiction,  the  doctrine  prevails  that  proceed- 
ings not  conforming  to  tlie  statutes  are  void.  But  this  is 
on  the  ground  that  there  has  been  no  service  whatever, 
and  the  party,  therefore,  has  not  been  notified,  in  any  pro- 
per way,  of  anything.     The    purpose    of    the    statutory 

prescribed  in  this  chapter,  or  have  absconded  or  absented  themselves  from  their 
usual  place  of  abode  in  this  state,  or  that  they  have  concealed  themselves  so 
that  the  ordinary  j)rocess  of  law  can  not  be  served  upon  them,  the  court  in 
which  said  suit  is  brought,  or  in  vacation  the  clerk  thereof,  shall  make  an 
order  directed  to  the  non-residents  or  absentees,  notifying  them  of  the  com- 
mencement of  the  suit,  and  stating  briefly  the  object  and  general  nature  of 
the  iietition,  and,  in  suits  in  partition,  describing  the  property  sought  to  be 
partitioned,  and  requiring  such  defendant  or  defendants  to  appear  on  a  day 
to  be  named  therein  and  answer  the  petition,  or  that  the  petition  will  be 
taken  as  coiifcF^ed.  If  in  any  case  there  shall  not  he  sufficient  time  to  make 
jHiblication  to  the  first  tei-m,  the  order  shall  be  made  returnable  to  the  next 
term  thorenfter,  thnt  will  allow  sufficient  time  for  such  publication. 

' '  Sec.  202.3.  Process  against  resident  defendajits.— If  in  such  case,  part  or 
the  defendants  are  residents  of  the  state,  process  shall  be  issued  against  them 
afl  in  other  cases. 

"Hec.  2024.  Pvblication  to  issiie  on  return  of  non  est. — When,  in  any  of 
the  caHCB  cont;iine<l  in  section  2022,  summons  ^hall  be  issued  against  any  de- 
fendant, and  the  sheriff  to  whom  it  is  directed  shall  make  return  that  the 
defendnnt  or  dffcndants  cannot  be  found,  the  court,  being  first  satisfied  that 
process  cannot  be  served,  shall  make  an  order  as  is  required  in  said  section." 


Sec.  3]  Service  and  Return  of  Summons  49 

methods  is  to  furnish  means  from  which  notice  may  pos- 
sibly or  probably  be  obtained.  But,  as  a  court  acting  ouc- 
side  of  its  jurisdiction  is  not  recognized  as  entitled  to  obed- 
ience, the  special  statutory  methods  stand  entirely  on  then- 
own  regularity,  and,  if  not  regular,  cannot  be  said  to  have 
been  conducted  under  the  statutes.  The  distinction  is  obvi- 
ous and  is  not  imaginary." 

In  a  case  which  arose  in  Alabama,  Brickell,  C.  J.,  ob- 
serves: "The  statute  not  only  defines  the  cases  in  which  the 
court  may  take  jurisdiction  of  non-resident  or  absent  de- 
fendants, but  it  appoints  and  orders  the  mode  of  proceed- 
ing against  them,  and  declares  the  effect  of  the  decree  ren- 
dered, if  they  do  not  appear  and  defend.  The  jurisdiction 
and  authority,  like  all  jurisdiction  and  authority  derived 
from,  and  depending  upon  statute,  must  be  taken  a'nd  ac- 
cepted with  all  the  limitations  and  restrictions  the  statute 
creating  it  may  impose.  These  restrictions  and  limita- 
tions the  courts  are  bound  to  observe;  they  cannot  be  dis- 
l^ensed  with,  however  much  they  may  seem  to  embarass,  or 
however  unnecessary  they-  may  seem  to  be  in  the  adminis- 
tration of  justice  in  particular  cases.  The  statute  is  in  de- 
rogation of  the  common  law,  is  an  essential  departure  from 
the  forms  and  modes  a  court  of  equit}"  pursues  ordinarily, 
and  must  be  strictly  construed.  Proceedings  under  it  must 
be  closely  watched,  or  it  may  become  an  instrument  for  the 
infliction  of  irreparable  wrongs  upon  defendants  to  whom 
notice  is  imputed  bv  construction."  Sayre  v.  Land  Co.,  73 
Ala.  85. 

On  this  point.  Wade  says:  "As  this  manner  of  serving 
process  depends  for  its  validity  more  upon  its  strict  con- 
formity to  the  statute  by  which  it  is  authorized  than  upon 
any  inherent  probability  of  its  couve^'ing  intelligence  of 
the  impending  suit  to  the  party  whose  rights  are  to  be 
affected,  the  fact  tliat  it  has  actually  come  to  the  knowledge 
of  defendant  cannot  be  shov;n  to  supply  any  material  devia- 
tion in  the  publi(;atioii  fi'om  what  the  statute  ])rescribes. 
The  statute,  being  in  derogation  of  common  law,  is  always 
strictly  construed,"  Law  of  Notice  (2  Ed.)  sec.  1030. 

This  is  the  vrell  settled  doctrine  of  this  court,  as  shown 

in  numerous  instances.     Thus,  in  Sfeicart  v.  Stringer,  41 

Mo.  400,  it  was  ruled  that  where  the  statute  provides  for 

constructive  service  of  process,  the  terms  and  conditions 

T.  P.— 4 


50  Tkial  Practice  [Chap.  2 

prescribed  for  such  service  must  be  strictly  complied  with. 

A  striking  exemplification  of  this  principle  is  afforded 
by  ScheJl  v.  Leland,  45  Mo.  289.  There,  the  statute,  2  Wag- 
ner's Stat.,  p.  1008,  sec.  13,  was  the  same  as  section  2022, 
supra.  There,  the  plaintiff,  seeking  to  enforce  a  mechanic's 
lien,  filed  his  petition  and  had  summons  issued  in  the  ord- 
inary way,  which  was  returned  non  est,  Thereupon  he 
made  affidavit  before  the  clerk  in  vacation,  of  the  defend- 
ant's non-residency,  who,  on  such  affidavit,  r-.-^ued  an  order 
of  publication  which  was  followed  by  a  judgment.  Speak- 
ing of  this  proceeding  and  of  its  insiiffjeiency,  Wagner,  J., 
observed:  ''The  order  can  only  be  made  by  strictly  com- 
plying with  the  statute;  for.  in  all  cases  where  constructive 
notice  is  substituted  for  actual  notice,  strict  compliance  is 
required.  The  section  contemplates  and  directs  that  the 
facts  which  authorize  the  publication  shall  be  either  stated 
in  the  petition,  or  an  affidavit  embodying  them  shall  be  filed 
at  the  commencement  of  the  suit.  This  was  not  done  in 
this  case,  and,  therefore,  no  order  was  allowable  in  vaca 
tion  under  the  foregoing  section.  The  fifteenth  section  of 
the  same  act  enacts  that  when,  in  any  of  the  cases  contained 
in  the  thirteenth  section,  summons  shall  be  issued  against 
any  defendant,  and  the  sheriff  to  whom  it  is  directed  shall 
make  return  that  the  defendant  or  defendants  cannot  be 
found,  the  court,  being  first  satisfied  that  process  cannot 
be  served,  shall  make  an  order  as  required  in  the  thirteenth 
section.  But  this  section  gives  no  countenance  to  the  pro- 
ceeding in  the  case  at  bar.  It  does  not  authorize  an  order 
of  publication  in  vacation  at  all,  but  intends  that  it  shall  be 
made  by  the  court  at  the  regular  return  term.  I  conclude, 
therefore,  that  the  publication  was  a  nullity." 

It  will  be  noticed  that  the  principal  difference  between 
the  case  just  instanced  and  the  one  at  bar,  is  that  there 
the  summons  was  issued  first,  returned  non  est  and  fol- 
lowed by  the  affidavit  and  publication,  while  here,  the  affi- 
davit was  made  first,  followed  by  the  unauthorized  issuance 
of  the  summons,  return  thereon,  etc. 

In  Quigley  v.  Bank,  80  Mo.  289,  an  order  of  publication 
was  held  invalid  because  the  affidavit  against  unknown 
parties,  under  the  ])rovisions  of  section  3499,  now  section 
2027,  was  sworn  to  by  the  attorney  for  plaintiff,  instead  of 
by  the  plaintiff  himself,  that   section  requiring  that   the 


Sec.  3]  Service  and  Return  of  Summons  51 

plaintiff  should  make  the  oath,  therein  differing  from  sec- 
tion 2022,  where  the  oath  may  be  made  by  the  ''plaintiff  or 
some  person  for  him,"  which  difference  was  in  that  case 
pointed  out. 

So  in  State  ex  rel.  v.  Staley,  76  Mo.  158,  where  the  peti- 
tion did  not  set  forth  the  interests  of  the  unknown  parties, 
nor  did  the  order  of  publication  do  so,  as  required  by 
section  2027,  it  was  ruled  that,  in  consequence,  no  jurisdic- 
tion was  acquired  over  such  unknown  parties. 

In  Charles  v.  Morrow,  99  Mo.  638,  a  similar  ruling  was 
made  in  similar  circumstances  on  the  same  section  of  the 
statute  last  aforesaid,  and  the  principle  was  there  reiter- 
ated that,  "In  all  cases  where  constructive  or  substituted 
service  is  had  in  lieu  of  that  which  is  personal,  there  must 
be  a  strict  compliance  with  statutory  provisions  and  condi- 
tions." 

The  more  recent  case  of  Wilson  v.  Railroad,  108  Mo.  588, 
confirms  the  views  on  this  subject  heretofore  expressed 
in  other  cases:  "Mere  notice  of  service,  not  according  to 
law,  brings  no  one  into  court,  nor  does  mere  knowledge  on 
the  part  of  the  party  notified,  of  the  pending  proceedings 
have  any  more  valid  effect.  P olivine's  Appeal,  31  Conn. 

381;  Smith  Merc.  Law,  322." 

********** 

It  cannot  be  doubted  that  the  lower  court  would  have 
been  justified  in  disregarding  the  issuance  and  return  of  the 
summons,  and  in  proceeding  to  order  publication  on  the 
allegation  of  non-residency;  this  it  did  not  do;  its  whole 
action  was  based  on  the  writ  and  its  return,  which  course 
was  wholly  unsanctioned  by  the  statute.  On  the  contrary, 
right  in  the  teeth  of  the  allegations  of  non-residency  con- 
tained both  in  the  petition  and  affidavit,  the  trial  court 
made  an  order  of  publication  adapted  alone  to  the  case 
of  a  resident  who  cannot  be  found. 

It  will  not  do  to  say  that  the  unauthorized  order  of 
publication  would  be  just  at  likely  to  apprise  the  then  de- 
fendant of  the  suit  against  him  as  if  he  had  been  proceeded 
against  according  to  the  specific  method  prescribed  by  law, 
because  if  this  were  all  that  is  required,  then  a  printed 
circular  or  letter  sent  out  by  the  clerk  would  answer  the 
end  and  accomplish  the  purpose  just  as  well.  The  test  is, 
was  the  method  used  in  the  given  instance  the  one  pre- 


62  Trial  Practice  [Chap.  2 

scribed  by  the  statute?  If  the  answer  is  in  the  negative, 
that  answer,  without  more,  condemns  the  method  employed, 
and  announces  its  nullity.  Whether  that  method  actually 
notified  the  party,  is  of  no  importance  whatever.  The  end 
of  the  law  has  been  attained  when,  and  only  when,  its 
forms  have  been  observed.  Wade  on  the  Law  of  JSotice, 
and  Brown  on  Jurisdiction,  supra. 

Of  course,  if  the  order  of  publication,  by  reason  of  the 
facts  aforesaid,  is  to  be  deemed  invalid,  then  the  judg- 
ment grounded  thereon  must  share  the  same  fate  and  fall 
with  it.  And  the  writ  of  summons  and  the  order  of  publi- 
cation being  part  of  the  record,  are  competent  witnesses  of 
that  judgment's  invalidity,  and  by  them  it  can  be  im- 
peached collaterally.  Laney  v.  Garhee,  105  Mo.  355,  and 
cases  cited;  Russell  v.  Grant,  122  Mo.  161. 

Since  the  judgment  thus  rendered  must  be  regarded  as 
null,  of  course  the  defendant  acquired  no  title  in  conse- 
quence of  the  sale  which  occurred  under  the  execution 
which  issued  on  the  judgment.  1  Freem.  on  Judgments,  sec- 
tion 117.  On  this  ground  alone,  the  decree  should  be  af- 
firmed. 

[Gantt,  p.  J.,  filed  a  dissenting  opinion.] 


D'AUTREMONT  V.  ANDERSON  IRON  CO. 

Supreme  Court  of  Minnesota.     1908, 

104  Minnesota,  165. 

Browk,  J. 

Proceedings  to  register  title  to  real  property  under  the 
Torrens  system  of  land  transfer.  Respondent  Gaylord  had 
judgment  confirming  an  asserted  interest  in  the  land,  and 
applicants  appealed. 

The  sole  question  involved  is  whether  the  court  acquired 
.iurisdiction  of  George  W.  Leslie  in  the  partition  suit  *  *  * 
The  summons  in  that  action  was  served  by  publication,  and, 
as  already  mentioned,  designated  "George  H.  Leslie"  as 
defendant.  It  is  the  contention  of  appellant  that  the  error 
in  the  name,  the  use  of  the  initial  "H"  instead  of  "W", 


Sec.  3J  Service  and  Return  of  Summons  53 

was  an  irregularity  not  going  to  the  jurisdiction  of  the 
court;  while  respondent  contends  that  the  error  was  fatal, 
and  the  publication  of  the  summons  conferred  no  jurisdic- 
tion upon  the  court  to  adjudicate  the  rights  of  "George  W. 
Leslie."  *****  ^^d  we  have  for  consideration  the  ques- 
tion whether  the  publication  of  the  summons  in  the  form 
stated  was  a  valid  service  thereof  upon  "George  W.  Les- 
lie," the  real  party  in  interest. 

As  a  general  rule  the  common  law  recogTiizes  but  one 
Christian  name,  and  failure  in  judicial  or  other  pro- 
ceedings in  giving  the  name  of  the  party  to  state  his  mid- 
dle name,  or  the  initial  thereof  as  commonly  used,  is  not 
fatal  to  their  validity.  But  the  rule,  like  most  rules  of 
judicial  procedure,  is  not  without  exceptions.  Steivart  v. 
Colter,  31  Minn.  385,  18  N.  W.  98;  State  v.  Biggins,  60 
Minn.  1,  61  N.  W.  816,  27  L.  R.  A.  74,  51  Am.  St.  490.  It 
had  its  origin  during  the  early  times  in  England,  when  a 
person  had  but  one  name,  and  that  his  Christian  name. 
His  further  identification  was  indicated  by  some  designated 
physical  characteristic,  place  of  residence,  or  deed  of  valor 
or  virtue.  Even  since  the  adoption  of  the  system  of  fam- 
ily names,  the  first  or  Christian  name  has  been  held  by  the 
courts  of  England  as  the  true  name,  in  legal  proceedings, 
for  the  designation  of  persons ;  the  middle  name  or  the  in- 
itial thereof,  being  regarded  as  wholly  unimportant.  The 
rule  has  been  followed  and  applied  in  j)roceedings  both 
judicial  and  extrajudicial  in  this  country,  with  occasional 
exceptions  based  upon  special  circumstances. 

In  all  proceedings  where  an  error  in  the  name  may  be 
corrected  by  appropriate  application  to  the  court,  or  the 
particular  person  may  be  identified  by  extrinsic  evidence,  a 
mistake  in  the  name  appearing  in  the  proceeding  or  writing 
involved  is  not  ordinarily  fatal  to  its  validity.  Our  stat- 
utes, as  do  the  statutes  of  nearly  all  the  states  of  this 
country,  provide  for  the  correction  of  mistakes  in  the  names 
of  parties  in  judicial  proceedings.  R.  L.  1905,  Sec.  4157; 
Casper  v.  Klippen,  61  Minn.  353,  63  N.  W.  737,  52  Am.  St. 
604;  Kenyan  v.  Semon,  43  Minn.  180,  45  N.  W.  10.  In  re- 
spect to  similar  mistakes  in  conveyances  of  land,  mort- 
gages, contracts,  or  statutory  proceedings  for  the  fore- 
closure of  mortgages,  the  rules  of  evidence  permit  the  full 
and  complete  identification  of  parties  misnamed  by  error 


54  Tkial  Practice  [Chap.  2 

or  mistake.  Massillon  E.  S  T.  Co.  v.  Holdridge,  68  Minn. 
393,  71  N.  W.  399 ;  Ansley  v.  Green,  82  Ga.  181,  7  S.  E.  921. 
Of  course,  to  authorize  such  amendments  in  judicial  pro- 
ceedings, the  court  must  have  jurisdiction  of  the  parties  and 
afford  them  an  opportunity  to  be  heard,  and  in  other  pro- 
ceedings those  interested  in  the  subject-matter  must  also  be 
before  the  court,  with  opportunity  to  be  heard  on  the 
question  of  identity. 

It  has  often  been  held  that  the  failure  in  any  proceed- 
ing, judicial  or  otherwise,  to  include  the  initial  of  the  mid- 
dle name  is  unimportant,  and  not  fatal  to  its  validity. 
Cleveland  v.  Peirce,  34  Ind.  App.  188,  72  N.  E.  604;  State  v. 
Hughes,  31  Tenn.  261;  King  v.  Clarke,  7  Mo.  269.  The 
rule  has  been  declared  otherwise,  however,  where  a  wrong 
initial  is  used,  particularly  in  deeds  or  other  instruments 
affecting  the  title  to  land.  A^nbs  v.  Chicago,  St.  P.  M.  S  0. 
Ry.  Co.,  44  Minn.  266,  46  N.  W.  321;  Burford  v.  McCue, 
53  Pa.  St.  427.  And  there  has  been  a  tendency  in  some  of 
the  courts  to  break  away  from  the  old  rule,  and  to  hold  the 
full  true  name  of  all  parties  essential  in  all  proceedings. 
Parker  v.  Parker,  146  Mass.  321,  15  N.  E.  902;  Com.  v. 
Buckley,  145  Mass.  181,  13  N.  E.  368;  Button  v.  Simmons, 
65  Me.  583,  20  Am.  Rep.  729 ;  Ming  v.  Gwatkin,  6  Rand.  (Va.) 
551;  Boiven  v.  Mulford,  10  N.  J.  L.  230.  In  most  states  it 
is  held,  in  both  civil  and  criminal  actions,  that  an  omission 
or  the  use  of  a  wrong  initial  does  not  affect  the  jurisdiction  of 
the  court,  where  the  right  party  is  actually  served  with 
process  and  brought  into  court.  Casper  v.  Klippen,  61  Minn. 
353,  63  N.  W.  737,  52  Am.  St.  604;  14  Enc.  PI.  &  Pr.  301,  and 
cases  cited. 

There  is  reason  and  sound  sense  in  that  view  of  the  law 
In  such  case  the  right  party  is  actually  served,  and  the 
error  may  be  corrected  without  prejudice  to  any  of  his 
rights.  Only  an  extremely  technical  view  sustains  the 
position  that  in  such  cases  the  error  is  fatal.  Casper  v. 
Klippen,  supra,  overruling  Atwood  v.  Laridis,  22  Minn.  558, 
But  should  the  same  liberal  view  be  taken  where  the  de 
fendant  is  only  constructively  served  witli  summons,  as  in 
the  case  at  bar,  by  publication?    We  tliink  not. 

The  reasons  for  disregarding  the  error  wliere  tliere  i  ; 
personal  service  u])()n  Hie  I'ight  ]iarty  do  not  ai>ply  where 
the  only  ser\ice  is  by  2)ublication  against  a  non-resident  of 


Sec.  3]  Service  and  Return  of  Summons  55 

tlie  state.  In  a  case  of  that  kind  tlie  true  name  of  the  party 
becomes  of  especial  importance.  It  is  well  known  that  there 
are  numerous  persons  having  the  same  christian  and  sur- 
name, but  with  a  different  middle  name,  such  aa  John  0. 
Johnson,  John  A.  Johnson,  and  John  M.  Johnson,  James  A. 
Green  and  James  E.  Green,  and  they  are  each  identified  and 
distinguished  by  the  initial  of  the  middle  name.  It  would 
be  intolerable  in  the  practical  affairs  of  life  if  persons  by 
the  name  of  Johnson,  Green,  or  Brown,  or  even  the  numer- 
ous Jones  family,  should  be  required  to  take  notice  of 
every  action  brought  by  the  publication  of  summons  iu 
which  a  part  of  his  name  appeared  as  the  party  defend- 
ant. No  personal  service  is  made  in  such  cases,  and  that  the 
real  defendant  has  knowledge  of  the  pendency  of  the  action 
is  an  inference  of  tha  law  only,  and  the  use  of  a  wrong 
initial  is  naturally  misleading  and  likely  to  result  to  his 
prejudice.  The  statute  authorizing  this  form  of  process  is 
in  derogation  of  the  common  law,  and  the  mode  prescribed 
must  be  strictly  pursued.  Reno,  Non-residents,  Sec.  190; 
Gilmore  v.  Lampman,  86  Minn.  493,  90  N.  W.  1113,  91  Am. 
St.  376 ;  Duxhury  v.  Dalile,  78  Minn.  427,  81  N.  W.  198,  79 
Am.  St.  408.  This  method  of  acquiring  jurisdiction  and 
adjudicating  the  rights  of  parties  constitutes  due  pro- 
cess of  law  only  when  the  statutes  providing  therefor  have 
been  fully  and  completely  complied  with.  Corson  v.  Shoe- 
maker, 55  Minn.  386,  388,  57  N.  W.  134;  Clary  v.  O'Shea, 
72  Minn.  105,  75  N.  W.  115,  71  Am.  St.  485. 

Some  of  the  courts  have  held  that  the  use  of  a  wrong 
initial,  or  other  error  in  defendant's  name,  not  coming 
within  the  rule  of  idem  sonans,  where  the  summons  is 
served  by  publication,  is  not  a  compliance  with  the  statute, 
and  is  fatal  to  the  jurisdiction  of  the  court.  66  Cent.  Law.  J. 
338;  14  Enc.  PI.  &  Pr.  302,  and  cases  cited  in  note;  Cleve- 
land V.  Peirce,  34  Ind.  App.  188,  72,  N.  E.  604;  State  v. 
Hughes,  31  Tenn.  261 ;  King  v.  Clarke,  7  Mo.  269 ;  Fanning 
V.  Krapfl,  61  Iowa  417, 14  N.  W.  727, 16  N.  W.  293 ;  Enewold 
V.  Olsen,  39  Neb.  59,  57  N.  W.  765,  22  L.  R.  A.  573,  42  Am. 
St.  557;  Skelton  v.  Sackett,  91  Mo.  377,  3  S.  W.  874;  Free- 
man V.  Hawkins,  77  Tex.  499,  14  S.  W.  364,  19  Am.  St.  769; 
Fitzgerald  v.  Salentine,  51  Mass.  436;  Parker  v.  Parker, 
146  Mass.  320,  15  N.  E.  902;  Davis  v.  Steeps,  87  Wis.  472, 
58  N.  W.  769,  23  L.  R.  A.  818,  41  Am.  St.  51;  1  Black  on 


56  Tkial  Practice  /  [Chap.  2 

Judgments,  Sec.  232.  The  cases  just  cited  are  not  all  pre- 
cisely in  point,  but  they  are  analogous,  and  bear  out  the 
claim  that  a  service  by  publication,  (where  there  is  a  sub- 
stantial error  in  the  name  of  the  defendant,  confers  no 
jurisdiction  on  the  court.  We  are  not  prepared  to  say  that 
the  mere  omission  of  the  middle  narne,  or  the  initial  thereof, 
would  wholly  nullifj^  the  proceedings;  but  where,  as  in  this 
case,  there  is  an  attempt  to  give  the  full  name  of  the  de- 
fendant, and  a  wrong  initial  is  used,  it  must,  in  view  of 
the  very  common  practice  of  identifying  particular  in- 
dividuals by  adding  their  middle  name,  be  held  that  the 
error  is  misleading,  and  likely  to  result  in  prejudice  to 
those  who  may  perchance  notice  the  same  as  published  in 
the  newspaper.  It  would  be  straining  the  rule  requiring  a 
strict  observance  of  the  statute  permitting  service  of 
process  in  this  manner  to  hold  an  error  so  likely  to  mislead 
and  prejudice  an  irregularity  only. 

As  bearing  upon  the  question  of  jurisdiction,  numerous  in- 
stances are  reported  in  the  books  where  errors  and  defects  of 
far  less  significance  than  the  one  here  presented  have  been 
held  to  wholly  vitiate  a  judgment  based  upon  this  form  of 
constructive  service.  In  Barber  v.  Morris,  37  Minn.  194,  33 
N.  W.  559,  5  Am.  St.  836,  and  Brown  v.  St.  Paul  £  N.  P.  Eij. 
Co.,  38  Minn.  506,  38  N.  W.  698,  judgments  were  held  void 
on  collateral  attack  for  the  failure  of  the  plaintiff  to  file  his 
affidavit  for  publication  within  the  time  prescribed  by 
statute.  In  the  first  of  these  cases  the  affidavit  was  not  filed 
until  the  day  of  the  entry  of  judgment.  In  tho  second  case, 
a  condemnation  proceeding,  the  affidavit  was  not  filed  until 
after  tlie  summons  had  been  published.  An  affidavit  filed 
two  days  after  the  first  publication  was  held  insufficient  in 
Murphy  v.  Lyons,  19  Neb.  689,  28  N.  W.  328.  If  the  affi- 
davit be  technically,  in  point  of  substance,  not  in  compli- 
ance with  the  statute,  a  judgment  rendered  on  service  by 
publication  is  void.  Carrico  v.  Tarivater,  103  Ind,  86,  2  N. 
E.  227,  where  the  affidavit  fails  to  show  that  the  action  is 
one  in  which  service  by  publication  is  authorized;  Harris 
v.  Claflin,  36  Kan.  543,  13  Pac.  830;  Nelson  v.  Roundtree, 
23  Wis.  367;  Forhes  v.  Hyde,  31  Cal.  342.  Insufficiently 
specific  as  to  due  diligence  in  ascertaining  the  residence  of 
the  defendant.  Little  v.  Chambers,  27  Iowa,  522.  In  Illi- 
nois the  statute  requires  the  issuing  and  return  of  process 


Sec.  3]  Service  and  Return  of  Summons  57 

"not  found"  before  publication,  and  a  judgment  rendered 
upon  such  service  without  the  return  was  held  void  in  Chick- 
ering  v.  Failes,  26  111.  507,  and  also  in  Firebaugh  v.  Hall,  63 
111.  81.  If  the  affidavit  be  not  made  by  all  the  plaintiffs, 
where  two  or  more  join  in  bringing  the  action,  the  judg- 
ment rendered  is  void.  Kane  v.  Rock  River  Canal  Co., 
15  Wis.  179;  Mecklem  v.  Blake,  19  Wis.  397.  And  also 
where  the  sheriff  fails  in  observance  of  the  statutory  re- 
quirement to  continue  in  an  effort  to  find  the  defendant  in 
the  state  pending  publication.  Israel  v.  Arthur,  7  Colo.  5, 
1  Pac.  438;  Kennedy  v.  Lamb,  182  N.  Y.  228,  74  N.  E.  834, 
108  Am.  St.  800.  And  where  the  summons  is  defectively 
addressed  to  the  defendant.  Durst  v.  Ernst,  45  Misc.  627, 
91  N.  Y.  Supp.  13.  See  also,  Van  Fleet,  Collateral  Attack, 
sections  331,  348 ;  6  Current  Law,  1090,  and  cases  cited. 

There  is  a  conflict  in  the  adjudicated  cases  upon  the  ques- 
tion whether  defects  of  the  nature  of  those  here  mentioned 
are  jurisdictional.  Many  courts  hold  to  the  doctrine  that 
a  judgment  rendered  in  the  face  of  such  defects  is  not  ren- 
dered absolutely  void,  but  irregular,  and  that  the  irregu- 
larity may  be  corrected  by  motion.  But  the  two  Minne- 
sota cases  above  referred  to  settle  the  rule  in  this  state,  and 
are  in  harmony  with  the  general  principle  that  to  confer 
jurisdiction  in  cases  of  this  kind  the  statutes  must  be  strict- 
ly complied  with.     1  Black,  Judg.  Sec.  232. 

But  we  need  not  pursue  this  subject.  Reference  is  made 
to  it  only  to  emphasize  the  importance  given  by  many 
courts  to  errors  and  defects  in  the  proceedings  leading  up 
to  the  service  of  summons  by  publication.  The  affidavit  of 
publication  in  such  cases  is  not  filed,  nor  required  to  be 
filed,  for  the  information  of  the  defendant.  He  receives  no 
benefit  therefrom  by  way  of  notice  of  the  suit  or  otherwise, 
nor  by  the  sheriff's  certificate  of  "Not  foimd,"  nor  from 
the  order  for  publication,  where  an  order  is  required;  and 
if  a  judgment  rendered  on  service  by  publication  is  void  for 
want  of  jurisdiction,  for  errors  in  these  respects,  and  in 
others  pointed  out  in  the  decisions  referred  to,  for  a 
stronger  reason  should  the  error  of  misnaming  defend- 
ant be  fatal,  where  the  error  does  not  come  within  the  rule 
of  idem  sonans,  and  is  such  as  is  likely  to  mislead  and  re- 
sult in  his  prejudice. 

In  A7tibs  v.  Chicago,  St.  P.  M.  £  0.  Ry.  Co.,  44  Minn.  266, 


58  Trial  Practice  [Chap.  2 

46  N.  W.  321,  it  appeared  that  the  land  there  in  question 
was  at  one  time  conveyed  to  '^ William  H.  Brown,"  and  the 
chain  of  title  disclosed  a  subsequent  conveyance  from  "Wil- 
liam B.  Brown."  The  court  there  held,  Judge  Dickinson 
writing  the  opinion,  that  there  was  no  presumption  that  the 
two  Browns  were  one  and  the  same  person.  If  that  be 
sound  as  to  private  writings,  and  we  have  no  reason  to 
question  the  decision,  it  follows  naturally  that  the  same 
rule  should  be  applied  to  a  judicial  proceeding  like  that  at 
bar,  and,  if  so,  we  have  no  right  to  assume  that  "George  W. 
Leslie"  and  "George  H.  Leslie"  are  one  and  the  same 
person. 

It  is  urged  by  appellant  that  inasmuch  as,  in  cases 
where  the  summons  in  an  action  is  served  by  publication, 
the  defendant,  may,  upon  good  cause  shown,  which  has  been 
construed  as  an  answer  stating  a  defense,  come  in  and  de- 
fend the  action  within  a  year  after  notice  of  its  entry,  the 
court  should  be  more  liberal  in  the  consideration  of  errors 
of  the  character  of  those  here  involved,  citing  Qiiarle  v. 
Abbet,  102  Ind.  233,  1  N.  E.  476,  52  Am.  Rep.  662.  But  we 
are  not  persuaded  by  this  argument.  If  the  error  in  the 
name  is  jurisdictional,  as  we  hold,  judgment  entered  is  void, 
and  to  adopt  the  contention  of  appellant  would  result  in 
compelling  a  defendant  in  a  particular  case  to  waive  the 
want  of  jurisdiction  in  the  court  to  enter  judgment  against 
him,  and  to  come  to  this  state  and  litigate  the  cause  on  its 
merits.  This  the  court  has  no  right  to  do.  The  law  provid- 
ing for  the  manner  of  acquiring  jurisdiction  over  non-resi- 
dents is  plain,  and  should  not  be  ignored,  even  in  a  case  of 
apparent  hardship.  We  are  sustained  in  this  view  by  the 
Supreme  Court  of  Michigan  in  the  case  of  Granger  v.  Judge, 
44  Mich.  384,  6  N.  W.  848,  where  the  court  speaking  through 
Justice  Campbell,  said,  "Where  cases  and  proceedings  are 
not  according  to  the  usual  course,  and  are  special  in  their 
character,  they  are  held  void  on  slighter  grounds  than  reg- 
nhxr  suits,  because  the  courts  have  not  the  same  power  over 
their  records  to  correct  them.  So  where  there  has  been  no 
personal  service  within  the  jurisdiction,  the  doctrine  pre- 
vails that  proceedings  not  conforming  to  the  statutes  are 
void.  But  this  is  on  the  ground  that  there  has  been  no  ser- 
vice whatever,  and  the  party  therefore  has  not  been  notified 
in  any  proper  way  of  anything." 


Sec.  3]  Service  and  Return  of  Summons  59 

Counsel  called  attention  to  the  case  of  Illinois  v.  Hasen- 
winkle,  232  111.  224,  83  N.  E.  815.  While  the  court  in  that 
case  in  the  course  of  the  opinion  said  that  the  use  of  a 
wrong  initial  of  the  middle  name  of  a  non-resident  defend- 
ant in  condemnation  proceedings  would  not  necessarily 
render  the  judgment  therein  void,  the  real  ground  of  the 
decision  there  made  was  that  the  defendant,  so  erroneous- 
ly named,  had  permitted  the  judgment  to  remain  unques- 
tioned for  over  fifty  years  during  which  time  the  railroad 
f'ompany  had  occupied  the  premises  granted  by  the  judg- 
ment as  its  right  of  way. 

We  therefore  hold,  in  harmony  with  the  views  of  the 
learned  trial  court,  that  the  publication  of  the  summons  in 
the  partition  suit  directed  to  "George  H.  Leslie"  did  not 
confer  jurisdiction  upon  the  court  to  adjudicate  the  rights 
of  ** George  W.  Leslie." 

Judgmen t  affirmed. 


NELSON  y.  THE  CHICAGO,  BURLINGTON  &  QUINCY 
RAILROAD  CO. 

Supreme  Court  of  Illinois.    1907. 

225  Illinois,  197. 

Mr,  Justice  Hand  delivered  the  opinion  of  the  court. 

The  appellant,  Lars  R.  Nelson,  on  the  21st  day  of  April, 
1906,  filed  a  praecipe  in  the  office  of  the  clerk  of  the  Circuit 
Court  of  Kane  county  for  a  summons  in  an  action  on  the 
case  against  the  Chicago,  Burlington,  &  Quincy  Railway 
Company,  an  Iowa  corporation,  and  the  Chicago,  Burling- 
ton &  Quincy  Railroad  Company,  an  Illinois  corporation. 
A  summons  was  issued  against  both  companies  and  deliv- 
ered to  the  sheriff  of  said  county  to  serve,  which  summons 
was  returned  by  said  sheriff  not  served  as  to  the  railroad 
company,  because  the  president  or  any  other  of  the  officers 
or  agents  of  said  railroad  company  with  whom  the  statute 
provides  a  copy  of  the  summons  may  be  left  to  effect  ser- 
vice of  process  on  the  company,  could  not  be  found  by  him 
in  said  county.     The    praecipe   and    summons    were  then 


60  Tkial  Peactice  [Chap.  - 

amended  and  the  case  discontinued  as  to  the  railway  com- 
pany, and  the  railroad  company  was  served  with  process 
by  publication  and  mail,  as  in  chancery  cases,  as  is  au- 
thorized by  paragraph  5  of  the  Practice  Act,  (Kurd's  Stat. 
1905,  Chap.  110),  and  a  declaration  was  filed  against  the 
railroad  company. 

*  *  *  *  The  railroad  company  entered  a  special  ap- 
pearance and  moved  to  quash  the  service  of  process  had 
upon  it  by  publication  and  mail,  which  motion  was  sus- 
tained, and  the  appellant  electing  to  stand  by  the  service  of 
j)rocess  and  refusing  to  proceed  further,  the  court  dis- 
missed the  suit,  and  the  appellant  has  prosecuted  this  ap- 
peal. 

It  is  *  *  *  contended  by  the  railroad  company  that 
*  *  *  *  if  service  of  process  by  publication  and  mail  is 
authorized  by  said  paragraph  5  upon  a  defendant  railroad 
company  that  has  its  principal  office  in  this  state  in  a  suit 
where  a  judgment  in  personam  is  sought  against  the  rail- 
road company,  the  statute  is  unconstitutional  and  void,  as 
such  service  of  process,  it  is  said,  does  not  constitute  due 
process  of  law. 

The  law  provides  for  two  methods  of  service  of  process ; 
the  one  actual  and  the  other  constructive.  Actual  service 
of  process  is  made  by  reading  the  original  process  to  the 
defendant  or  by  delivering  to  him  a  copy  thereof ;  and  con- 
structive service  of  process,  which  is  a  substituted  service  of 
process,  is  made  by  leaving  a  copy  of  the  process  at  the  de- 
fendant's residence  when  he  is  absent,  or  by  posting  or 
publishing  notice  of  the  pendency  of  the  suit,  and  mailing 
a  copy  of  the  notice  posted  or  published  to  the  defendant, 
if  his  postoffice  address  is  known.  It  is  held  that  the  ser- 
vice of  process,  either  actual  or  constructive,  upon  a  non- 
resident defendant  outside  the  limits  of  the  state  where 
the  action  or  proceeding  is  pending  will  not  authorize  the 
rendition  of  a  personal  judgment  or  decree  against  a  de- 
fendant, but  that  such  service  of  process  is  sufficient  upon 
which  to  base  a  decree  changing  the  marital  status  in  a 
proceeding  for  divorce,  or  a  judgment  or  decree  disposing 
of  property  situated  within  the  jurisdiction  of  the  court 
wherein  the  action  or  proceeding  is  pending.  It  is  also 
lield    that   each   state   may   determine   for  itself  in  what 


Sec.  3]  Service  and  Return  of  Summons  61 

method  process  may  be  served  upon  its  citizens  within  its 
own  boundaries,  and  while  such  legislation  will  have  no 
force  outside  the  state,  service  of  process  within  the  state 
in  the  manner  pointed  out  in  the  statute  regulating-  the 
method  of  obtaining  such  constructive  service  of  process, 
if  the  method  of  service  of  process  provided  for  is  such  as  to 
amount  to  due  process  of  law,  as  these  terms  are  used  in  the 
State  and  Federal  constitutions,  will  be  sufficient  to  author- 
ize the  courts  of  the  State  within  whose  jurisdiction  the 
service  of  process  is  had  to  pronounce  a  personal  judgment 
or  decree  against  a  defendant  so  served  with  process,  al- 
though cases  may  arise  in  practice  upon  such  constructive 
service  of  process  where  a  personal  judgment  or  decree 
might  be  obtained  against  a  defendant  without  such  defend- 
ant having  received  actual  notice  of  the  pendency  of  the  ac- 
tion prior  to  judgment  or  decree.  Constructive  service  of 
process,  it  is  said,  is  authorized  in  a  certain  class  of  cases, 
such  as  when  the  defendant  has  gone  out  of  the  State,  or 
when  he  cannot  be  found,  or  when  he  conceals  himself  so 
that  process  cannot  be  served  upon  him,  as  the  result  of 
necessity — that  is,  such  constructive  service  of  process  is 
substituted  for  actual  service  of  process  when  actual  service 
of  process  cannot  be  had  upon  a  defendant.  In  this  case 
actual  service  could  not  be  had  upon  the  defendant  although 
the  suit  was  properly  brought  in  the  court  from  which  the 
process  was  issued  and  the  defendant  was  a  resident  of,  and 
was  in  the  State,  and  the  question  here  is  narrowed  to  this : 
Can  the  legislature  provide  a  constructive  or  substituted 
service  of  process  by  publication  and  mail,  in  lieu  of  actual 
service  of  process,  in  a  case  where  the  process  cannot  be 
actually  served  upon  the  defendant  in  the  county  where  the 
statute  expressly  authorizes  the  suit  to  be  commenced, 
although  the  defendant  resides  and  is  in  the  State? 

The  case  of  Bimeler  v.  Dawson,  4  Scam.  536,  was  an  ac- 
tion of  debt  upon  a  judgment  rendered  by  the  Court  of 
Common  Pleas  of  Stark  county,  in  the  State  of  Ohio, 
against  Welch  and  Dawson.  There  was  service  of  process 
upon  Dawson  only,  and  he  pleaded  nul  tiel  record  and  that 
he  was  not  personally  served  with  process.  The  record 
showed  personal  service  upon  Welch  and  service  on  Daw 
son  by  leaving  a  copy  of  the  summons  at  his  residence,  ana 
the  rendition  of  a  judgment  by  default  against  both  de- 


(j2  Trial  Practice  [Chap.  2 

fendants.  The  trial  court  held  that  for  want  of  personal 
service  upon  Dawson  the  judgment  was  not  evidence  of  in- 
debtedness against  him,  and  rendered  judgment  in  his 
favor.  Upon  an  appeal  to  this  court  the  judgment  was  re- 
versed, and  in  an  opinion  prepared  by  Justice  Treat,  on 
l)age  542,  it  was  said:  "The  laws  of  the  several  states  pro- 
vide different  modes  of  bringing  parties  into  court.  In 
some  states  personal  service  of  process  is  required,  while  in 
other  states  that  mode  is  not  indispensable,  but  a  part}- 
may  be  required  to  appear  and  defend  an  action  on  notice 
by  iniblication  or  by  the  leaving  of  process  at  his  residence. 
It  is  doubtless  competent  for  each  state  to  adopt  its  own 
regulations  in  this  respect,  which  will  be  binding  and 
obligatory  on  its  own  citizens.  "We  can  not  doubt  the  right 
or  power  of  the  State  of  Ohio  to  provide  that  the  kind  of 
service  which  it  appears  was  made  in  this  case  shall  be 
sufficient  to  authorize  its  courts  to  take  jurisdiction  of  the 
person  of  a  defendant  and  proceed  to  hear  the  case  and 
render  judgment.  A  judgment  thus  rendered  against  one 
of  its  citizens  would  be  binding  and  conclusive  on  him, 
for  owing  allegiance  to  the  State,  he  is  bound  by  its  law 
and  amenable  to  its  judicial  tribunals.  That  State,  how- 
ever, cannot  in  that  way  get  jurisdiction  over  the  people 
of  other  States.  Its  laws  can  only  operate  within  its  own 
territory  and  on  its  own  citizens.  They  cannot  be  made 
to  operate  extra-territorially,  or  on  the  citizens  of  other 
States  unless  they  go  voluntarily^  within  its  limits." 

And  in  Welch  v.  Sykes,  3  Gilm.  197,  on  page  201,  it  was 
said:  "It  is  competent  for  each  State  to  prescribe  the 
mode  for  bringing  parties  before  its  courts.  Although  its 
regulations  in  this  respect  can  have  no  extra-territorial 
operation,  tliey  are  nevertheless  binding  on  its  own  citi- 
zens." 

In  iS^nilJi  V.  Smith,  17  111.  482,  on  page  484,  it  was  said :  "  A 
State  may  nnd()u])tedly  provide  for  bringing  its  own  citizens 
or  subjects  before  its  tribunals  by  constructive  notice,  which 
may  not  in  all  cases  come  to  the  actual  knowledge  of  the 
party;  still  tlie  presumption  is  that  he  has  actual  notice,  or 
might  liave  such  notice  by  the  exercise  of  proper  care  and 
diligence." 

W'liat  is  du<'  jirocess  of  law  in  all  instances  is  not  easilv 


Sec.  3]  Service  axd  Return  of  Summons  63 

defined,  but  as  applied  to  this  case  it  clearly  means  pro- 
ceeding according  to  the  course  of  the  common  law,  and  the 
common  law  has  from  time  immemorial  required  that  a  de- 
fendant be  personally  notified  of  the  pendency  of  an  action, 
if  he  was  within  the  jurisdiction  of  the  court  and  could 
be  found,  before  judgment  or  decree  was  rendered  against 
him.  The  common  law,  however,  never  required  actual 
service  of  process  in  all  cases,  but  has  always  provided  for 
a  constructive  service  of  process  when  actual  service  there- 
of could  not  be  had,  such  as  the  leaving  of  a  copy  of  the  sum- 
mons at  the  defendant's  residence,  and  latterly  a  posting  or 
publishing  of  notice  of  the  pendency  of  the  suit  or  proceed- 
ing, when  the  defendant  was  out  of  the  State  or  upon  due 
inquiry  could  not  be  found,  or  when  he  concealed  himself 
so  that  process  could  not  be  served  upon  him. 

In  Bardwell  v.  Anderson,  9  L.  R.  A.  152,  the  Supreme 
Court  of  Minnesota  said  (p.  154) :  "We  think  that  from 
the  earliest  period  of  English  jurisprudence  down  to  the 
present,  as  well  as  in  the  jurisprudence  of  the  United 
States  derived  from  that  of  England,  it  has  always  been 
considered  a  cardinal  and  fundamental  princiiDle  that  in 
actions  in  personam  proceeding  according  to  the  course  of 
the  common  law,  personal  service  (or  its  equivalent  as  by 
leaving  a  copy  at  his  usual  place  of  abode),  of  the  writ, 
process  or  summons  must  be  made  on  all  defendants  resi- 
dent and  to  be  found  within  the  jurisdiction  of  the  court.  We 
do  not  mean  that  the  term  'proceeding  according  to  the 
course  of  the  common  law,'  as  used  in  the  books,  is  to  be 
understood  as  meaning,  necessarily  and  always,  personal  or 
actual  service  of  process,  for  although  service  by  publication 
is  of  modern  origin,  there  has  always  been  some  mode  by 
which  jurisdiction  has  been  obtained  at  common  law  by 
something  amounting  to  or  equivalent  to  constructive  ser- 
vice, where  the  defendant  could  not  be  found  and  served 
personally ;  but  what  we  do  mean  to  assert  is,  that  the  right 
to  resort  to  such  constructive  or  substituted  service  in  j^er- 
sonal  actions  proceeding  according  to  the  course  of  the  com- 
mon law  rests  upon  the  necessities  of  the  case,  and  has  al- 
ways been  limited  and  restricted  to  cases  where  personal 
service  could  not  be  made  because  the  defendant  was  a  non- 
resident, or  had  absconded,  or  had  concealed  himself  for 
the  purpose  of  avoiding  service.    As  showing  what  means 


64  Teial  Pkactice  [Chap.  2 

were  resorted  to  as  amounting  or  equivalent  to  constructive 
service,  and  how  strictly  it  was  limited  to  cases  of  necessity 
by  both  courts  of  common  law  and  courts  of  chancery,  ref- 
erence need  only  be  had  to  3  Blackstone's  Com.  283,  444." 

While  the  authorities  are  not  in  entire  harmony  upon 
the  subject,  the  Illinois  cases  and  the  greater  weight  of 
authority  clearly  establish,  we  think,  the  proposition  that 
a  personal  judgment  in  an  action  at  law  may  be  rendered 
against  a  defendant  residing  in  and  who  is  in  the  State 
where  the  suit  or  proceeding  is  pending,  who  has  been 
notified  of  the  pendency  of  the  suit  by  constructive  service 
of  process,  where  it  appears  actual  service  of  process  could 
not  be  had  upon  the  defendant,  if  the  constructive  service 
provided  for  was  required  ^^  be  had  in  such  manner  that 
the  reasonable  probabilitie  re  that  the  defendant  would 
receive  notice  of  the  pendiu^  action  or  proceeding  before 

judgment  or  decree  was  rendered  against  him. 

********** 

Reversed  and  remanded.^ 

1  In  Bardwell  v.  Collins,  (1890)  44  Minn.  97,  46  N.  W.  315,  quoted  above 
in  Nelson  v.  Chicago,  Burlington  and  Quincy  Railroad  Co.,  the  statute  author- 
ized service  of  summons  by  publication,  in  actions  to  foreclose  mortgages,  as  to 
all  parties  to  the  action  against  whom  no  personal  judgment  was  sought.  The 
court  held  (1)  thjit  such  actions  were  not  «i  rem  but  in  personam,  since  they 
determined  the  rights  and  equities  of  the  parties  interested  in  the  mortgaged 
premises;  (2)  that  such  actions  were  strictly  judicial  in  character,  proceeding 
according  to  the  due  course  of  the  common  law;  (3)  that  it  is  a  cardinal 
principle  of  "due  process  of  law"  that  in  actions  in  personam  proceeding  ac- 
cording to  the  course  of  the  common  law,  jiersonal  service  of  process  must  be 
had  uj)on  defendants  resident  and  to  be  found  within  the  jurisdiction  of  the 
court;  (4)  the  statute  is  uuconstitutionfil  in  so  far  as  it  attempts  to  authorize 
service  by  mere  publication  upon  resident  defendants  capable  of  being  per- 
sonally served. 


KENNEDY  V.  LAMB. 

Court  of  Appeals  of  New  York.    1905 

182  Neiu   York,  228. 

Vann,  J.  The  purchasers  at  the  sale  in  this  action, 
whicli  was  bronglit  to  partition  lands  in  the  borough  of 
]*rooklyii.  rcfiisod  to  complete  their  purchase  upon  the 
groiiiid  that  the  title  was  defective.    By  an  order,  made  at 


Sec.  o]  Service  and  Return  of  Summons  65 

Special  Term  and  affirmed  by  the  Appellate  Division,  they 
were  directed  to  comply  with  the  terms  of  sale  and  they  now 
appeal  to  this  court  for  relief  from  what  they  consider  an 
unlawful  command.  They  claim  that  the  court  which  ren- 
dered the  judgment  in  partition  did  not  acquire  jurisdic- 
tion of  several  persons,  each  a  necessary  party  defendant, 
because  they  were  not  personally  served  with  process  and 
the  effort  to  serve  them  by  publication  was  void,  owing  to 
a  vital  defect  in  the  affidavits  upon  which  the  order  to  pub- 
lish was  made. 

From  the  affidavits  presented  to  the  justice  who  granted 
the  order  of  publication,  one  made  by  the  plaintiff  and  the 
other  by  his  attorney,  it  appeared  that  six  of  the  defendants 
resided  in  the  State  of  New  Jersey,  four  at  Jersey  City  and 
two  at  Plainfield.  The  only  attempt  to  show  compliance 
with  the  command  of  the  statute  in  reference  to  ^^due  dili- 
gence  to  make  personal  service  of  the  summons"  was  an 
allegation  in  the  affidavit  of  the  attorney  that  ''the  plain- 
tiff will  be  unable  with  due  diligence  to  make  personal  ser- 
vice of  the  summons  within  the  State  as  appears  by  the 
affidavit  of  Peter  J.  Kennedy  hereto  annexed."  The  affi- 
davit thus  referred  to  contains  nothing  whatever  upon  the 
subject  of  diligence,  discloses  no  effort  to  serve  the  sum- 
mons in  this  state,  and  gives  no  reason  for  not  making  the 
effort,  aside  from  the  bare  fact  of  non-residence.  It  does 
not  appear  that  the  summons  had  been  issued  or  that  it  was 
placed  in  the  hands  of  anyone  for  service  upon  the  defend- 
ants named,  and  for  aught  that  appears  they  could  have 
been  served  in  this  state  without  difficulty.  They  were 
nephews  and  nieces  of  the  plaintiff  and  had  visited  and 
corresponded  with  him  "for  several  years  past,"  as  he 
stated  in  his  affidavit.  He  did  not  state  how  recently  they 
had  visited  him,  when  he  last  heard  from  them,  nor  where 
he  himself  resided.  Four  of  them  lived  just  across  the  state 
line  and  two  of  them  but  a  short  distance  therefrom.  All 
may  have  been  engaged  in  business  in  the  State  of  Xew 
York  and  in  daily  attendance  there  for  that  purpose,  as  is 
the  case  with  so  many  residents  of  the  State  of  New  Jersey. 
The  affidavit  did  not  state  that  they  were  not  in  New  York 
or  that  they  were  actually  in  New  Jprsey  when  the  affiant 
swore  to  it. 
Aj>  «rder  may  be  made  for  service  by  publication  upon  a 
.  p.— 5   - 


66  ITeial  Practice  [Chap.  2 

defendant  who  is  a  non-resident  of  the  state,  provided  ''the 
plaintitf  has  been  or  will  be  unable  with  due  diligence  to 
make  personal  service"  within  the  state.  (Code  Civ.  Pro. 
Sections  438,  439.)  The  bare  fact  of  non-residence  is  not 
enough  to  authorize  the  order,  for  the  plaintiff  must  also 
show  due  diligence  to  make  personal  service,  or  state  facts 
tending  to  show  why  personal  service  cannot  be  made.  The 
statute  now  in  force  differs  from  the  one  which  formerly 
governed  the  subject  when  some  of  the  cases  cited  were 
decided,  in  that  the  latter  authorized  service  by  publication 
when  the  person  to  be  served  could  not  "after  due  diligence 
be  found  within  the  State."  (Code  of  Pro.  Section  135.) 
The  old  statute  was  satisfied  with  due  diligence  to  find  the 
defendant,  while  the  present  statute  requires  either  due 
effort  to  serve,  or  sufficient  reasons  for  not  making  the 
effort. 

In  the  case  now  before  us  there  was  no  attempt  to  make 
personal  service  and  no  reason  was  given  for  not  trying  to 
serve  personally,  except  the  fact  of  non-residence.    Even  if 
residence  in  a  distant  state  or  in  a  foreign  country  permits 
the  inference  that  the  person  to  be  served  cannot  be  found 
in  this  State,  residence  in  an  adjoining  state,  just  across  the 
line,  with  no  evidence  that  the  non-resident  is  not  in  busi- 
ness in  this  state,  or  that  he  does  not  sojourn  here,  and  no 
explanation  whatever  for  not  trying  to  serve  him  here,  is 
not  sufficient.     As  was  said  by  this  court  in  Carleton  v. 
Carleton,  (85  N.  Y.  313,  315):     "It  is  a  well  known  fact 
that  many  persons  who  are  residents  of  one  state  have 
places  of  business  and  transact  such  business  in  a  state 
different  from  that  in  which    their    residence    is  located. 
They  are  frequently  in  the  latter  state,  and  pass  most  of 
their  time  there.     Such  persons  could  be  readily  found  in 
the  state  where  they  do  business  if  due  diligence  was  used 
for  that  purpose  and  non-residence,  of  itself,  does  not  nec- 
essarily show  that  they  cannot  be  found  within  the  state,  or 
raise  a  presumption  that  due  diligence  has  been  used,  or 
that  it  was  not  required." 

In  a  latel-  case  it  was  said:  "Where  the  proof  of  non- 
rosi donee  is  clear  and  conclusive,  and  that  the  defendant  is 
living  out  of  the  state  and  in  a  distant  state,  there  may  be 
strong  reasons  for  holding  that  proof  of  diligence  is  not 
required;"  and  as  it  appeared  that  the  defendant  resided 


Sec.  3]  Service  A^'D  Return  of  Summons  67 

in  Maryland,  and  that  the  summons,  which  had  been  duly 
issued  and  some  effort  made  to  serve  it,  could  not  be  served 
owing  to  that  fact,  the  affidavit  was  held  sufficient.  {Ken 
nedy  v.  Neiv  York  Life  Ins.  <&  Trust  Co.,  101  N.  Y.  487). 

In  McCracken  v.  Flanagan,  (127  N.  Y.  493),  it  appeared 
that  a  summons  had  been  issued  against  the  defendant  and 
''that  defendant  is  a  non-resident  of  this  state,  nor  can  be 
found  therein,  but  has  a  place  of  residence  at  Matewan,  in 
the  state  of  New  Jersey."  After  a  careful  review  of  the 
leading  cases  it  was  held  that  the  affidavit,  which  was  made 
when  section  135  of  the  Code  of  Procedure  was  in  force,  was 
insufficient  to  give  jurisdiction.  The  court  said:  "Some 
degree  of  diligence  must  be  exercised  to  find  the  party,  and 
what  is  a  due  degree  depends  upon  circumstances  surround- 
ing each  case,  and  the  simple  averments  in  the  affidavit  that 
the  defendant  is  a  non-resident  and  cannot  be  found  within 
the  state  are  not  alone  sufficient  to  support  an  order  for 
the  service  of  a  summons  by  publication.  Those  facts  do 
not  imply  that  any  diligence  has  been  exercised  to  find  and 
serve  the  defendant  personally  with  process.  It  needs  no 
argument  to  show  that  the  averment  in  the  affidavit  that 
the  defendant  cannot  be  found  in  the  state  does  not  tend  to 
prove  the  exercise  of  due  diligence  to  find  the  defendant, 
for  the  statute  in  question  not  onlj^  requires  that  it  be  stated 
in  the  affidavit  that  the  defendant  cannot  be  found,  but  ex- 
pressly requires  the  averment  that  he  cannot  be  found  after 
due  diligence." 

In  Belmont  v.  Cornen,  (82  N.  Y.  256),  the  order  was  sus- 
tained upon  proof  of  non-residence,  followed  by  an  aver- 
ment that  the  summons  had  been  issued  to  the  sheriff  of 
the  county  where  the  premises,  covered  by  the  mortgage 
sought  to  be  foreclosed,  were  situated;  that  the  sheriff 
"had  used  due  diligence  to  find  the  defendants  and  after 
such  due  diligence  and  inquiry  they  could  not  be  found  with- 
in said  county  or  state." 

In  C router  v.  Crouter,  (133  N.  Y.  55)  an  affidavit  was 
held  sufficient  which  stated  the  non-residence  of  the  defend- 
ants ;  that  they  had  no  place  of  business  in  this  state ;  that 
plaintiff  believed  that  a  summons  could  not,  with  due 
diligence,  be  served  personally  within  the  state  and  that  he 
had  present  knowledge  of  defendants'  movements,  and  was 
satisfied  that  they  frequent  no  place  in  the  state. 


(jS  Trial  Peactice  [Chap.  2 

In  Fetes  v.  Vohner,  (28  N.  Y.  St.  Kep.  317),  the  court  said : 
**  Though  a  non-resident,  the  defendant  may  be  at  the  time 
temporarily  in  the  state  to  the  knowledge  of  the  plaintitf, 
and  within  easy  reach  of  personal  service  of  the  summons. 
No  such  proof  was  made  by  the  plaintiff  in  this  case.  The 
affidavit  of  his  attorney,  upon  which  the  order  was  pro- 
cured, states  only  that  the  action  has  been  commenced,  that 
a  summons  has  been  issued,  and  that  the  two  defendants 
named  are  non-residents  of  the  state  and  that  they  reside  at 
Marion,  Washington  County,  Iowa.  The  affidavit  was,  in 
this  respect,  plainly  insufficient  and  the  county  judge  was 
without  jurisdiction  to  grant  the  order," 

While  any  evidence  having  a  legal  tendency  to  show  com- 
pliance with  the  statute,  even  if  inconclusive,  would  war- 
rant the  exercise  of  judgment  and  thus  confer  jurisdiction 
to  make  the  order,  in  this  case  there  was  no  evidence  as  to 
the  use  of  diligence,  or  to  excuse  the  omission  of  effort  to 
serve  in  this  state.  Even  if  a  judge  reached  a  wrong  con- 
clusion upon  the  facts  presented,  so  that  his  order  would  be 
set  aside  on  direct  attack  by  motion  to  vacate,  still  if  he 
had  some  legal  evidence  to  act  upon,  the  order  would  be 
protected  from  collateral  attack  after  the  entry  of  judg- 
ment. There  was  no  evidence  presented  to  the  justice  who 
made  the  order  now  before  us  which  authorized  him  to  act 
judicially  or  to  decide  that  the  plaintiff  would  be  unable 
with  due  diligence  to  make  personal  service  in  this  state. 
An  affiant  who  simply  repeats  the  words  of  a  statute  merely 
states  his  opinion  upon  a  proposition  to  be  proved.  Proof 
requires  that  facts  be  stated  from  which  the  conclusion 
sought  may  be  logically  drawn.  We  find  no  case  in  this 
court  and  no  well  considered  case  in  any  court  which  sus- 
tains an  order  founded  simply  on  proof  of  non-residence 
in  an  adjoining  state  with  no  effort  n  de  to  find  or  serve, 
and  no  reason  given  why  such  effort  if  made  would  be  use- 
less. 

Tlie  purchasers  were  entitled  to  a  marketable  title,  free 
from  reasonable  doubt  and  they  were  justified  in  refusing 
to  cotiiplete  their  purchase  because  the  affidavits  upon  which 
the  order  of  publication  was  based  were  insufficient  to  con- 
fer jurisdiction. 

The  order  of  the  Appellate  Division,  as  well  as  that  of 


Sec.  4]  Service  and  Return  of  Summons  (^9 

the  Special  Terin  should  bo  reversed  and  the  motion  denied, 
with  costs  in  all  courts. 

CuLLEN,  Ch.  J.,  Gray,  O'Brien,  Bartlett,  PTaight  and 
Werner,  JJ.,  concur. 

Order  Reversed. 


Section  4.    Place  of  Service. 

WALLACE  V.  UNITED  ELECTRIC  COMPANY. 

Supreme  Court  of  Pennsylvania.    1905, 

211  Pennsylvania  State,  473. 

Opinion  by  Mr.  Justice  Brown,  April  17,  1905. 

The  first  prayer  of  appellant's  bill  is  for  full  dis- 
covery. *  *  * 

A  decree  for  discovery  is  a  personal  one  to  be  enforced 
against  the  person  decreed  to  make  it ;  and,  if  the  appellee 
was  properly  brought  within  the  jurisdiction  of  the  court 
below  personally,  a  decree  that  it  make  discovery  could  be 
enforced  against  it  personally  by  the  appellant  as  his  first 
move  to  obtain  the  ultimate  relief  asked  for.  In  view  of 
this,  the  proceeding  must,  as  was  held  by  the  learned  judge 
below,  be  regarded  as  in  personam  as  to  the  appellee ;  and 
tlie  question  whether  the  Act  of  April  6,  1859,  P.  L.,  387, 
even  if  it  does  authorize  extra-territorial  service  of  process 
from  a  court  of  this  state,  is  effectual  to  acquire  jurisdic- 
tion over  the  person  of  a  defendant  residing  and  served  in 
another  state,  is  not  an  open  one. 

Before  the  passage  of  that  act,  Chief  Justice  Gibson,  in 
discussing  the  attempt  to  acquire  jurisdiction  over  the  per- 
son of  the  defendant  by  the  extra-territorial  service  of  pro- 
cess, said  in  Steel  v.  Smith,  7  W.  &  S.  447:  "Jurisdiction 
or  the  person  or  property  of  an  alien  is  founded  on  its 
presence  or  situs  within  the  territory.  Without  this  pres- 
ence or  situs,  an  exercise  of  jurisdiction  is  an  act  of  usurpa- 
tion. An  owner  of  property  who  sends  it  abroad  subjects  it 
to  the  regulations  in  force  at  the  place  as  he  would  subject 
his  person  by  going  there.  The  jurisdiction  of  either  springs 


70  Trial  Pkactice  [Chap.  2 

from  the  voluntary  performance  of  an  act,  of  whose  conse- 
quences he  is  bound  to  take  notice.     But  a  foreigner  may 
choose  to  subject  his  property,  reserving  his  person;  and  it 
is  clear  that  jurisdiction  of  property  does  not  draw  after 
it  jurisdiction  of  the  owner's  person;  consequently,  there 
can  be  no  rightful  action  by  the  tribunals  on  the  foundation 
of  jurisdiction  acquired  by  the   attachment  of  property, 
which  reaches  beyond  the  property  itself.    ****** 
What,  then,  is  the  right  of  a  state  to  exercise  authority  over 
the  persons  of  those  who  belong  to  another  jurisdiction,  and 
who  have,  perhaps,  not  been  out  of  the  boundaries  of  it! 
'The  sovereignty  united  to  domain,'  says  Vattel,  'estab- 
lishes the  jurisdiction  of  the  nation  over  its  territories  or 
the  countries  which  belong  to  it.    It  is  its  province,  or  that 
of  its  sovereign,  to  exercise  justice  in  all  places  under  its 
jurisdiction,  or  the  country  which  belongs  to  it;  to  take 
cognizance  of  the  crimes  committed  and  the  differences  that 
arise  in  the  country.'    'On  the  other  hand,'  adds  Mr.  Jus- 
tice Stoey   (Confl.  Ch.  14,  §539),  no  sovereignty  can  ex- 
tend its  process  beyond  its  own  territorial  limits,  to  sub- 
ject other  persons  or  property  to  its  judicial  decisions. 
Every  exertion  of  authority  beyond  these  limits  is  a  mere 
nullity,  and  incapable  of  binding  such  persons  or  property 
in  other  tribunals.'    And  for  this  he  cites  Picquet  v.  Swan 
(5  Mason,  35-42).     Not  to  multiply  authorities  on  a  point 
so  plain,  it  will  be  sufficient  to  add  the  name  of  Mr.  Burge 
(1  Confl.  1),  who  says  it  is  a  fundamental  principle,  essen- 
tial to  the  sovereignty  of  every  independent  state,  that  no 
municipal  law,  whatever  its  nature  or  object,  should,  pro- 
prio  vigore,  extend  beyond  the  territory  of  the  state  by 
which  it  has  been  established.'  And  again  (3  Burge  Confl. 
1044),  'that  the  authority  of  every  judicial  tribunal,  and 
the  obligation  to  obey  it,  are  circumscribed  by  the  limits  of 
the  territory  in  which  it  is  established.'  Such  is  the  familiar, 
reasonable  and  just  principle  of  the  law  of  nations;  and  it 
is  scarce  sujiposable  that  the  framers  of  the  constitution 
designed  to  abrogate  it  between  states  which  were  to  re- 
main as  independent  of  each  other,  for  all  but  national  pur- 
poses, as  they  wore  before  the  revolution.   Certainly  it  was 
not  intended  to  legitimate  an  assumption  of  extra-terri- 
torial  jurisdiction   which  would   confound    all    distinctive 
I)rinciples  of  separate  sovereignty;    and    there    evidentl\^ 


Sec.  4]  Seevice  and  Betuen  of  Summons  71 

was  such  an  assumption  in  the  proceedings  under  consider- 
ation," Speaking  of  the  act  of  1859,  under  which  the  court 
made  the  order  for  the  extra-territorial  service  of  process 
upon  the  appellee,  Sharswood,  J.,  in  Coleman's  Appeal,  75 
Pa.  441,  in  stating  that  it  has  not  been  the  policy  of  our 
.jurisprudence  to  bring  non-residents  within  the  jurisdiction 
of  our  courts,  unless  in  very  special  cases,  said:  ''In  pro- 
ceeding against  them  for  torts,  even  property  belonging  to 
them  cannot  be  reached  by  process,  and  in  cases  of  contract 
nothing  but  the  property  can  be  affected  unless  the  defend- 
ant voluntarily  appear  and  submit  to  the  jurisdiction.  We 
may  congratulate  ourselves  that  such  has  been  the  policy, 
for  nothing  can  be  more  unjust  than  to  drag  a  man  thou- 
sands of  miles,  perhaps  from  a  distant  state,  and  in  effect 
compel  him  to  appear  and  defend  under  the  penalty  of  a 
judgment  or  decree  against  him  pro  confesso.  The  act  of 
1859  ought,  therefore,  to  receive  a  construction  in  harmony 
with  this  policy.  There  exists  no  good  reason  why  courts 
of  equity  should  be  invested  with  a  more  enlarged  jurisdic- 
tion against  non-residents  than  courts  of  law."  This  was 
followed  by  the  case  of  Scott  v.  Noble,  72  Pa.  115,  in  which 
we  held  that  Noble  was  not  bound  by  process  directed  to  be 
served  upon  him  by  the  supreme  judicial  court  of  Massa- 
chusetts outside  the  state,  though  he  had  accepted  service 
of  the  writ  in  the  state  of  Pennsylvania.  By  the  Act  of 
March  13,  1815,  P.  L.  150,  regulating  proceedings  in  di- 
vorce, the  act  provides  for  service  upon  the  respondent 
"wherever  found,"  but  in  Ralston' s  Appeal,  93  Pa.  133, 
we  said  of  that  act:  "It  declares  'upon  due  proof  at  the 
return  of  the  said  subpoena  that  the  same  shall  have  been 
served  personally  on  the  said  party  wherever  found,  or  that 
a  copy  had  been  given  to  him  or  her  fifteen  days  before  the 
return  of  the  same,'  a  divorce  may  be  decreed.  It  is  con- 
tended in  case  the  libellee  in  divorce  is  not  found  within 
the  bailiwick  of  the  sheriff,  the  latter  may,  under  this  act, 
depute  some  person  to  make  the  service  in  another  state. 
If  a  legal  service  could  thus  be  made  in  Delaware  it  can  be 
in  California.  Such  cannot  be  a  true  construction  of  the 
statute.  The  language  'wherever  found'  cannot  be  so  con- 
strued as  to  give  to  a  court  of  this  state  extra-territorial 
power  to  bring  within  its  jurisdiction  the  person  of  a  citi- 
zen and  resident  of  another  state.     The  property  found 


72  Teial  Practioe  [Chap.  2 

within  this  state  of  a  non-resident  may  be  reached  and 
charged  and  sold  in  the  enforcement  of  a  debt  resting  on  a 
contract  without  an}^  personal  service  on  the  debtor.  In 
the  case  of  an  ordinary  debt,  the  person  of  a  non-resident 
defendant  not  fonnd  within  the  state  cannot  be  reached  by 
any  process  issued  by  a  court  of  common  law.  In  cases 
where  the  language  of  the  statute  would  seem  to  give  extra- 
territorial power  this  court  has  denied  its  exercise.  Thus 
the  16th  section  of  the  Act  of  13th  June,  1836,  relating  to 
the  removal  of  paupers,  authorizes  them  to  be  removed  'at 
the  expense  of  the  district  to  the  city,  district  or  place 
where  he  was  last  legalty  settled,  whether  in  or  out  of 
Pennsylvania.'  It  has,  however,  been  held  the  provision 
for  a  removal  into  another  state  is  of  no  force  or  effect: 
Overseers  of  Limestone  v.  Overseers  of  Ohillisqiiaque,  6 
Norris  294.  The  first  section  of  the  Act  of  6th  April,  1859, 
authorizes  any  court  of  this  commonwealth  having  equity 
jurisdiction,  in  any  suit  in  equity  instituted  therein  con- 
cerning property  within  the  jurisdiction  of  the  said  court, 
to  order  and  direct  that  any  subpoena  or  other  process  to 
be  had  in  such  suit  be  served  on  any  defendant  therein 
'then  residing  or  being  out  of  the  jurisdiction  of  said  court 
wherever  he,  she  or  they  may  reside  or  be  found.'  It  fur- 
ther provides  for  the  proof  of  service  both  within  and  with- 
out the  limits  of  the  United  States.  It  was  held  in  Cole- 
man's Appeal,  75  Pa.  41,  that  process  thus  issued  in  this 
state  and  served  in  another  state  on  a  resident  thereof 
could  not  give  jurisdiction  of  the  person  thus  served."  In 
the  federal  courts  the  same  view  is  entertained.  By  a 
statute  of  the  state  of  Oregon  provision  was  made  for  ser- 
vice upon  a  non-resident  by  publication.  In  Pennoyer  v. 
Neff,  95  U.  S.  714,  it  appeared  that  judgment  had  been 
entered  against  Neff  on  process  which  the  plaintiff  un- 
dertook to  have  served  upon  him  extra-territorially,  by 
I)ublication,  in  conformity  to  the  statute.  Judgment  was 
entered  in  the  proceeding  against  him,  and,  in  holding  that 
he  was  not  bound  by  it,  through  Mr.  Justice  Field,  it  was 
said:  ''Where  the  entire  object  of  the  action  is  to  deter- 
mine the  personal  rights  and  obligations  of  the  defendants, 
that  is,  where  the  suit  is  merely  in  personam,  constructive 
service  in  this  form  upon  a  non-resident  is  ineffectual  for 
any  j^urpose.    Process  from  the  tribunals  of  one  state  can- 


Sec.  4]  Service  and  Return  of  Summons  73 

not  run  into  another  state,  and  summon  parties  there  domi- 
ciled to  leave  its  territory  and  respond  to  proceedings 
against  them."  In  the  Circuit  Court  of  the  United  States, 
for  the  western  district  of  this  state,  in  the  case  of  McHenry 
V.  New  York  P.  &  0.  B.  R.  Co.,  25  Fed.  Repr.  65,  the  Court 
of  Common  Pleas  of  Westmoreland  county  had  made  an 
order  of  service  on  aliens  in  pursuance  of  the  act  of  1851), 
but  it  was  said  by  the  Circuit  Court:  *'It  is,  indeed,  true 
that  pursuant  to  an  order  of  the  Court  of  Common  Pleas, 
claimed  to  be  authorized  by  the  Pennsylvania  Act  of  April 
6,  1859,  P.  L.  387,  process  has  been  served  on  those  defend- 
ants in  England,  where  they  reside,  but,  clearly,  such  extra- 
territorial service  was  ineffectual  to  bring  them  within  the 
jurisdiction  of  the  court  or  make  them  parties  to  the  suit: 
'Pennoyer  v.  Neff,  95  U.  S.  714." 

The  service  upon  the  appellee  was  ineffectual  to  bring  it 
into  this  jurisdiction,  and  the  order  of  the  court  below  set- 
ting it  aside  was  properly  made.  That  order  is  now  affirmed 
and  this  appeal  dismissed  at  the  costs  of  appellant. 


BARRY  V.  WACHOSKY. 

Supreme  Court  of  Nebraska.    1899. 
57  Nebraska,  534. 

Ragan,  C. 

James  M.  Barry,  J.  M.  Brannan,  and  C.  D.  Ryan,  made 
their  promissory  note  for  $500  and  delivered  the  same  to 
one  D.  F.  Clarke.  The  note  was  payable  to  Clarke  only.  It 
was  non-negotiable.  Before  the  note  matured  Clarke  seems 
to  have  sold  it  to  Michael  Wachosky.  At  any  rate  he  wrote 
his  name  across  the  back  of  the  note,  and  over  that  he  re- 
cited in  writing  that  he  guaranteed  the  payment  of  the 
note,  and  delivered  it  to  Wachosky.  The  latter,  in  the  coun- 
ty court  of  Douglas  county,  brought  a  suit  against  Clarke, 
Barry,  Brannan,  and  Ryan  and  set  out  in  his  petition  the 
execution  and  deliver}^  of  the  note  by  the  makers  thereof  to 
Clarke,  and  then  that  Clarke  wrote  his  name  on  the  back 
of  the  note,  and  wrote  over  his  name  his  contract  guaran- 


74  Teial  Practice  [Cliap.  2 

teeing  the  payment  of  the  note,  and  delivered  it  to  him, 
Wachosky.  Clarke  resided  and  was  summoned  in  Douglas 
count5\  The  makers  of  the  note  were  found  and  summoned 
in  Dakota  county.  The  makers  of  the  note  on  being 
brought  into  the  county  court,  appeared  specially  and  ob- 
jected to  the  jurisdiction  of  the  court  over  them,  upon  the 
grounds  that  they  were  found  and  summoned  in  Dakota 
county,  where  they  resided,  and  that  Clarke  was  summoned 
in  Douglas  county.  This  objection  of  the  makers  to  the 
jurisdiction  of  the  county  court  over  them  was  by  it  over- 
ruled. The  makers  of  the  note  then  answered  to  the  merits 
of  Wachosky 's  petition,  and  interposed  as  a  defense  to  the 
court's  jurisdiction  the  fact  that  they  were  residents  of  and 
found  and  summoned  only  in  Dakota  county.  Wachosky,  by 
a  reply  to  this  answer,  admitted  that  the  makers  were  found 
and  summoned  only  in  Dakota  county.  Wachosky  had  a 
verdict  and  judgment  in  the  county  court,  and  the  makers 
prosecuted  a  petition  in  error  to  the  district  court  to  re- 
verse that  judgment.  The  district  court  affirmed  the  judg- 
ment of  the  county  court,  and  its  judgment  is  now  before 

us  on  a  petition  in  error. 

********** 

Section  60  of  the  Code  of  Civil  Procedure  provides, 
in  substance,  that  every  action  not  otherwise  specifically 
provided  for  must  be  brought  in  the  county  in  which  the 
defendant,  or  some  one  of  the  defendants,  resides  or  may  be 
summoned.  Section  65  of  the  Code  provides  that  when  an 
action  is  rightly  brought  in  any  county  a  summons  may  be 
issued  to  another  county  against  any  one  or  more  of  the 
defendants  at  the  plaintiff's  request.  Now  Clarke  was 
made  a  defendant  to  this  action,  and  he  was  served  with 
a  summons  in  Douglas  county,  and  therefore  it  was  proper 
to  summon  the  other  defendants  to  the  action  in  Dakota 
county,  if  the  action  was  riglitly  brought  against  Clarke  in 
Douglas  county.  The  test  for  determining  whether  an  ac- 
tion be  rightly  brought  in  one  county  against  the  defendant 
found,  and  served  therein,  so  that  the  other  defendants  may 
l)e  served  in  a  foreign  county  is  whether  the  defendant 
served  in  the  county  in  which  the  action  is  brought  is  a 
bona  fide  defendant  to  that  action — whether  his  interest  in 
the  action  and  in  the  result  thereof  is  adverse  to  that  of  the 
plaintiff.    [Banna  v.  Emerson,  45  Neb.  708,  and  cases  there 


Sec.  4]  Service  and  Return  of  Summons  75 

cited;  Miller  v.  Meeker,  54  Neb.  452.)  Pearson  v.  Kansas 
Mfg.  Co.,  14  Neb.  211,  is  no  longer  regarded  as  sound,  but 
has  in  effect  long  been  overruled.  So  that,  looking  at  this 
action  as  a  suit  upon  the  promissory  note  executed  by  the 
plaintiffs  in  error  to  Clarke,  we  have  the  question,  Did 
Clarke,  by  assigning  this  note  to  Wachosky  become  liable 
upon  the  note?  We  think  not.  The  note  was  non-negotiable. 
It  was  merely  a  chose  in  action.  It  was  assignable,  and 
when  assigned  by  Clarke,  the  payee,  his  assignee,  Wach- 
osky,  could  maintain  an  action  upon  it  in  his  own  name,  and 
to  this  action  Clarke  was  not  a  necessary  party.  (Code  of 
Civil  Procedure,  sec.  30.)  Clarke,  by  assigning  this  note  to 
Wachosky,  did  not  become  liable  to  him  or  his  assignee  on 
the  note,  and  therefore,  viewing  this  action  as  a  suit  upon 
the  note,  Clarke  was  not  interested  in  the  result  of  that 
action  adversely  to  Wachosky,  and  therefore  the  action  was 
not  rightly  brought  on  the  note  in  Douglas  county  and 
the  court  had  no  jurisdiction  over  the  plaintiffs  in  error. 
Of  course,  if  the  payee  of  a  negotiable  promissory  note 
writes  his  name  across  the  back  thereof,  without  more,  and 
delivers  it  to  a  third  party,  the  law  will  write  over  that 
signature  the  promise  on  the  part  of  such  payee  that,  if  the 
holder  thereof  presents  it  to  the  maker  when  due  for  pay- 
ment, and  it  be  dishonored,  and  he  be  given  due  notice 
thereof,  he  will  pay  the  note  to  the  holder.  But  the  payee 
of  a  non-negotiable  note  who  sells  it,  writes  his  name  across 
the  back  thereof,  and  delivers  it  to  the  vendee,  without 
more,  does  not  thereby  become  liable  upon  the  note.  His 
assignment  and  delivery  of  the  note  simply  amounts  to  a 
quit  claim  upon  his  part  of  his  interest  in  the  note  to  his 
vendee.  Such  a  payee  of  such  a  non-negotiable  note  may, 
of  course,  make  himself  liable  to  his  assignee  for  the  pay- 
ment of  the  said  note  by  a  writing  evidencing  such  a  con- 
tract over  his  signature.  But  in  that  case  such  a  contract 
would  be  a  separate  and  independent  one  from  the  contract 
evidenced  by  the  note  and  would  not  affect  the  makers  of 
the  note  nor  their  liability;  nor  enable  the  holder  of  the 
note  to  unite  in  one  action  the  makers  and  the  payee.  In 
the  case  at  bar  Clarke  did  write  over  his  signature  on  this 
note  a  guaranty  of  pajTuent,  and  by  so  doing  he  became 
liable  to  Wachosky  as  a  guarantor  of  this  note.  But  the 
makers  of  the  note  were  not  parties  to  the  contract  of 


76  Trial.  Pbactice  [Ckap.  2 

guaranty.  The  contract  of  guaranty  was  Clarke's  con- 
tract, and  a  senarate  and  independent  contract  from  the  con- 
tract made  by  plaintiffs  in  error.  Clarke  was  not,  and  is  not, 
liable  to  Wachosky  on  the  note.  The  makers  of  the  note 
are  not  liable  to  Wachosky  on  Clarke's  guaranty.  There- 
fore, if  we  regard  this  as  a  suit  upon  the  note,  Clarke  was 
not  a  proper  party  thereto,  and  the  court  had  no  jurisdic- 
tion over  the  plaintiffs  in  error.  It  we  regard  it  as  a  suit 
upon  the  guaranty,  Clarke  was  the  only  proper  party  there- 
to and  the  court  had  no  jurisdiction  over  the  plaintiffs  in 
error.  Wachosky  has,  perhaps,  two  causes  of  action.  One 
cause  of  action  is  on  the  note  and  against  the  makers  there- 
of. The  other  cause  of  action  is  against  Clarke  on  his 
guaranty  of  pajTuent.  These  two  causes  of  action  cannot  be 
united,  for  the  obvious  reason  that  each  one  does  not  affect 
all  the  parties  to  the  action.  {Mowery  v.  Mast,  9  Neb.  445 ; 
Code  of  Civil  Procedure,  sec.  88.)  The  judgment  of  the  dis- 
trict court  is  reversed  and  the  action,  so  far  as  it  affects  the 
plaintiffs  in  error,  is  dismissed. 

Reversed  and  dismissed. 


Section  5.    Keturn  of  Service. 
JONES  V.  BIBB  BRICK  COMPANY. 

Supreme  Court  of  Georgia.    1904. 

120  Georgia,  321.        ^* 

Motion  to  set  aside  judgment.  Before  Judge  Hodges. 
City  Court  of  Macon.    October  17,  1903.     [Judgment  set 

aside.    Plaintiff  excepted.] 

********** 

Lamar,  J.  A  summons  of  garnishment  directed  to  the 
Bibb  Brick  Company  was  served,  August  23,  1902,  the  re- 
turn of  tho  officer  showing  that  he  had  served  the  summons 
on  "Bibb  Brick  Co.,  by  handing  the  same  to  John  T. 
Moore,  its  secretary  and  treasurer."  *  *  *  The  motion  to 
sot  tliis  judgment  aside  is  verified  by  Moore,  and  does  not 
deny  tliat  he  was  in  charge  of  the  office  or  of  the  business 


Sec.  5]  Sekvice  and  Return  of  Summons  77 

of  the  company  in  the  county.  *  *  *  We  are  therefore  to 
deal  with  a  case  in  which  the  return  of  the  officer,  who  had 
made  good  service,  was  incomplete  and  defective  in  its 
failure  to  allege  that  Moore,  "secretary  and  treasurer," 
was  "in  r-hnt-g'e  of  the  office  or  business*'  oi  the  garnishee 
at  the  time  the  summons  was  handed  to  him  in  person. 

i-7.  Process  and  service  are  essential.  But  the  return, 
being  only  evidence  of  what  the  officer  has  done  in  serving, 
the  writ,  is  not  jurisdictional.  Still  it  is  manifest  that  a 
court  ought  not  to  proceed  without  having  a  legal  return  of 
record  to  show  that  its  process  had  been  actually  served, 
and  that  it  had  acquired  jurisdiction  over  the  person  of  the 
defendant.  If  there  is  an  entire  absence  of  a  return,  or  if 
the  return  made  is  void  because  showing  service  on  the 
wrong  person,  or  at  a  time,  place,  or  in  a  manner  not  pro- 
vided by  law,  the  court  cannot  proceed.  Callaway  v. 
Douglasville  College,  99  Ga.  623.  If,  however,  the  fact  of 
service  appears,  and  the  officer's  return  is  irregular  or  in- 
complete, it  should  not  be  treated  as  no  evidence,  but  rather 
as  furnishing  defective  proof  of  the  fact  of  service.  The 
irregularity  may  be  cured  by  an  amendment  which  does 
not  make  or  state  a  new  fact,  but  merely  supplies  an  omis- 
sion in  the  statement  as  to  an  existing  fact.  Where  there 
has  been  valid  service  and  no  return,  the  deficiency  may  be 
supplied  before  taking  further  steps  in  the  cause.  If  there 
has  been  service  and  a  voidable  or  defective  return,  it  may 
be  amended  even  after  judgment,  so  as  to  save  that  which 
has  been  done  under  service  valid  in  fact  but  incompletely 
reported  to  the  court.  For  in  its  last  analysis  it  is  the 
fact  of  service,  rather  than  the  proof  thereof  by  the  return, 
which  is  of  vital  importance.  Ordinarily  service  is  either 
good  or  bad.  But  process  and  return  existing  in  writing 
may  vary  between  void,  voidable,  and  perfect.  If  either  is 
void,  the  judgment  predicated  solely  thereon  is  a  nullity. 
Where  process  and  return  are  not  void,  some  classes  of  de- 
fects therein  are  cured  by  judgment.  For  many  things  are 
sufficient  to  prevent  a  judgTaent  from  being  rendered  which 
would  be  insufficient  to  set  aside  a  judgment  actually  ren- 
dered. Hence  the  Civil  Code,  section  5365,  declares  that 
"a  judgment  cannot  be  arrested  or  set  aside  for  any  defect 
in  the  pleadings  or  record  that  is  aided  by  verdict,  or 
amendable  as  matter  of  form."    This  right  to  amend  a 


78  Trial  Practice  [Chap.  2 

"return"  so  as  to  make  it  conform  to  the  facts  is  allowed 
on  general  principles  and  by  our  statute.  If  the  officer  is 
in  commission  and  liable  on  his  bond,  he  may  make  this 
amendment  voluntarily.  Civil  Code,  section  5116.  If  he 
is  dead  or  out  of  commission,  or  refuses  to  make  the  return 
which  the  facts  require,  then  the  amendment  may  be  ordered 
by  the  court  nunc  pro  tunc.  *  *  * 

*  *  *  *  In  Hargis  v.  E.  T.  Va.  S  Ga.  Ry.  Co.,  90  Ga.  42, 
the  return  was  attacked  before  judgment;  there  was  no 
offer  to  amend,  and  no  proof  that  the  agent  was  in  charge, 
or  that  service  upon  him  would  have  bound  the  company. 
The  court  therefore  properly  declined  to  enter  judgment 
against  the  garnishee.  In  Southern  Ry.  Co.  v.  Hagan,  103 
Ga.  564,  the  original  record  shows  that  the  process  was 
void,  and  the  garnishee  attacked  the  judgment  not  on  the 
ground  that  the  return  was  defective  but  because  it  had 
never  been  served  with  a  summons  of  garnishment.  But 
none  of  these  cases  determine  what  would  have  been  the 
effect  of  valid  process  and  perfect  service,  with  an  incom- 
plete or  defective  return  where  the  judgment  rendered 
thereon  was  attacked  and  the  motion  to  set  aside  and  evi- 
dence thereunder  showed  valid  service  in  fact.  Such  was 
the  case  of  Third  National  Bank  v.  McCullough,  108  Ga. 
249,  where  the  service  was  perfect,  but  the  return  failed  to 
recite  that  Hawkins,  president,  was  in  charge ;  and  yet  the 
judgment  against  the  garnishee  by  default  was  allowed  to 
stand,  there  being  no  allegation  in  the  attack  thereon  that 
Hawkins  was  not  in  fact  the  agent  of  the  bank,  in  charge 
of  its  affairs  in  the  county.  In  support  of  this  ruling  the 
court  cited  Sou.  Ex.  Co.  v.  Skipper,  85  Ga.  565,  determined 
under  a  statute  where  service  upon  an  agent  was  only  al- 
lowed when  the  president  of  the  garnishee  company  resided 
out  of  the  State.  The  return  was  silent  as  to  the  residence 
of  the  president,  and  yet  after  service  upon  the  local  agent 
alone  the  default  judgment  was  held  sufficient,  the  court 
saying,  tliat  "in  rendering  judgment  based  on  the  service 
its  sufficiency  was  adjudicated  at  least  in  an  incidental 
way."  Tlie  same  principle  was  involved  in  Holbrook  v. 
Evansville  Co.,  114  Ga.  2,  where  the  return  did  not  follow 
the  language  of  the  statute,  and  was  therefore  not  perfect 
in  its  ver))iage. 

Under  the  autliorities,  therefore,  it  is  evident  that  the 


Sec.  5]  Service  and  Return  of  Summons  79 

defective  return  might  have  been  amended  to  conform  to 
the  facts,  and  that  such  amendment  when  made  vrould  have 
related  back  so  as  to  make  the  record  complete  and  the 
judgment  perfect.  But  it  may  be  claimed  that  here  the 
defect  was  never  cured,  since  no  amendment  was  ever 
made.  None  was  necessary.  Whatever  may  be  the  rule  in 
ordinary  cases,  both  the  allegations  and  the  silence  of  this 
motion  make  it  certain  that  the  garnishee  had  been  duly 
served. 

Judgment  reversed.    All  the  justices  concur. 


SMOOT  V.  JUDD. 

Supreme  Court  of  Missouri.     1904. 

184  Missouri,  508. 

Marshall,  J. — This  is  a  bill  in  equity  to  set  aside  a  judg- 
ment of  the  circuit  court  of  Barton  county  rendered  on 
September  18,  1891,  in  favor  of  G.  S.  Judd  and  against  Ella 
G.  Smoot  and  Samuel  N.  Smoot,  and  the  execution  issued 
thereunder,  and  the  sheriff's  deed  to  certain  land  in  that 
county  made  to  said  Judd  as  purchaser  at  such  execution 
sale.  *  *  * 

Ella  G.  Smoot  and  Samuel  N.  Smoot  are  and  at  all  times 
hereinafter  mentioned  were  husband  and  wife,  Mrs.  Smoot 
owned  lots  4,  5,  and  6,  in  Jasper,  Missouri,  but  it  does  rot 
appear  whether  it  was  her  separate  estate  or  only  a  legal 
estate.  Being  such  owner,  she  and  her  husband,  on  April 
15,  1887,  executed  and  delivered  to  G.  S.  Judd  their  promis- 
sory note  for  $683.61,  payable  one  day  after  date.  *  *  *  The 
debt  was  not  paid,  and  on  July  28,  1891,  the  debt  being  then 
over  four  years  past  due,  Judd  instituted  suit  in  the  Barton 
Circuit  Court  against  Mr.  and  Mrs.  Smoot.  The  petition 
did  not  describe  the  defendants  as  husband  and  wife.  A 
summons  was  regularly  issued,  and  was  returned  by  the 
sheriff  as  having  been  served  personally  upon  both  Mr.  and 
Mrs.  Smoot.  *  *  *  The  case  was  allowed  to  go  by  default, 


80  Trial  Practice  [Chap.  2 

and  on  September  18,  1891,  a  personal  judgment  was  ren- 
dered against  Mr.  and  Mrs.  Smoot,  for  $925.13.  On  the 
3rd.  of  February,  1891,  Mrs.  Smoot 's  brother,  Peter  A. 
Gordon,  died  leaving  certain  land  in  Barton  county,  and 
Mrs.  Smoot  inherited  an  undivided  one-fourth  interest 
therein.  On  January  20,  1892,  an  execution  was  issued  on 
said  judgment  and  was  levied  on  Mrs.  Smoot 's  interest  in 
the  land.  *  *  *  The  land  was  then  sold  on  March  10,  1892, 
and  Judd  became  the  purchaser  of  Mrs.  Smoot 's  interest 
therein  for  $510.00,  and  received  a  sheriff's  deed  therefor. 

The  matter  stood  thus  until  October  30,  1893,  when,  the 
time  for  redemption  having  expired  and  the  Smoots  having 
done  nothing,  Judd  instituted  a  suit  for  the  partition  of 
the  land.  *  *  *  On  April  14,  1894,  a  decree  in  partition  was 
rendered  and  on  September  3, 1894,  the  land  was  sold  under 
that  decree,  and  the  defendants  Brand  and  Jackson  became 
the  purchasers  and  received  the  sheriff's  deeds  therefor, 
entered  into  possession  and  have  remained  in  possession 
ever  since.  It  is  conceded  that  at  some  time,  the  date  is 
not  disclosed  by  the  record,  Mrs.  Smoot  sued  the  sheriff  on 
his  official  bond,  for  $3,000  damages,  for  the  loss  of  her 
land,  by  the  sale  under  said  personal  judgment,  alleging 
that  his  return  upon  the  summons  that  he  had  served  it 
upon  her  personally  was  false,  and  that  upon  a  trial  of  that 
case  she  recovered  a  judgment  for  nominal  damages. 

On  August  18,  1895,  Mrs.  Smoot  instituted  this  suit  in 
equity.  The  petition  alleges  nearly  all  the  facts  herein- 
before set  out,  and  predicates  a  right  to  recover  upon  the 
falsitv  of  the  sheriff's  return  aforesaid.  The  nction  was 
brought  against  Judd,  Brand,  Jackson,  and  Mr.  Smoot. 
Judd  and  Smoot  though  personally  served  made  default, 
and  the  action  is  defended  by  Brand  and  Jackson,  the  pur- 
chasers of  the  property  at  the  partition  sale.  *  *  * 


I. 

At  some  time,  not  definitely  stated,  the  plaintiff  sued  the 
sheriff  for  damages  for  false  return,  and  recovered  a 
judgment.  Tf  tliat  action  was  instituted  before  this  suit 
was  begun,  it  would  clearly  be  a  bar  to  this  suit,  for  even  if 
it  should  be  conceded  that  the  plaintiff  was  entitled  to  both 
remedies,  the  election  to  take  one,  would  preclude  a  right 


Sec.  5]  Sekvice  and  Return  of  Summons  81 

thereafter  to  pursue  the  other.  [Nanson  v.  Jacob,  93  Mo. 
1.  c.  345;  Nalle  v.  Thompson,  173  Mo.  1.  c.  616.)  In  any 
event,  without  regard  to  which  action  was  begun  first,  it  now 
appears  that  the  plaintiff  prosecuted  her  suit  against  the 
sheriff  to  a  final  and  successful  result.  This  being  true, 
whatever  wrong  or  loss  she  suffered  in  consequence  of  thr 
alleged  false  return  of  the  sheriff,  has  been  compensated 
for,  and  she  has  obtained  satisfaction  therefor.  So  that 
even  if  it  could  be  conceded  that  her  remedy  was  double, 
her  wrong  and  loss  was  single  and  she  could  have  only  one 
satisfaction,  and  having  received  that  in  the  other  action, 
she  is  no  longer  entitled  to  pursue  this  remedy.  {Rivers  v. 
Blom,  163  Mo.  1.  c.  U8:Bank  v.  Bank,  130  Mo.  1.  c.  168.) 

But,  as  hereinafter  pointed  out,  I  am  of  opinion  that 
her  remedy  was  confined  to  an  action  on  the  sheriff's  bond, 
for  false  return,  and  that  she  cannot  maintain  a  suit  in 
equity  to  set  aside  the  judgment  or  its  consequences,  because 
of  the  falsity  of  the  sheriff's  return  showing  personal  ser- 
vice on  her. 

n. 

When  the  case  was  here  on  former  appeal,  it  was  held 
that  while  the  adjudications  in  this  State  had  held  that  a 
sheriff's  return  is  conclusive,  except  in  an  action  against 
the  sheriff  for  a  false  return,  still  in  some  other  jurisdic- 
tions, a  bill  in  equity  would  lie  to  set  aside  a  judgment,  by 
default,  based  upon  a  false  return  of  the  sheriff  showing 
service  of  the  summons  upon  the  defendant,  and  accord- 
ingly it  was  then  held  that  the  return  of  the  sheriff  was 
not  conclusive,  and  that  this  action  would  lie.  {Smoot 
V.  Judd,  161  Mo.  673.) 

With  the  greatest  respect  for  the  learned  judge  who 
wrote  that  opinion  and  for  the  equally  learned  judges  who 
concurred  in  it,  I  am  constrained  to  say,  I  think  it  does 
not  announce  the  true  rule  of  law  in  this  State,  and  that  it 
should  be  overruled. 

Ever  since  the  decision  of  this  court  in  Hallowell  v.  Page, 
24  Mo.  590,  the  law  has  been  uniformly  declared  in  this 
State  to  be  that  ''the  return  of  a  sheriff  on  process,  reg- 
ular on  its  face,  and  showing  the  fact  and  mode  of  service, 
is  conclusive  upon  the  parties  to  the  suit.  Its  truth  can 
T.  p.— 6 


82  Trial  Pkactice  [Ohap.  2 

be  controverted  only  in  a  direct  action  against  the  sheriff 
for  false  return."  *  *  * 

In  Steivart  v.  Stringer,  41  Mo.  1.  c.  404,  Wagner,  J.  ^id: 
' '  The  courts  of  some  of  the  States  have  held  that  a  sheriff's 
return  is  merely  prima  facie  evidence  of  the  facts  therein 
stated;  but  the  law  is  firmly  settled  in  this  State  that  a 
defendant  cannot  controvert  the  truth  of  the  sheriff's  re- 
turn. If  the  return  of  a  sheriff  to  a  process  is  regular  on 
its  face,  it  is  conclusive  upon  the  parties  to  the  suit,  and 
the  remed}^  for  the  party  injured  is  an  action  against  the 
sheriff  for  a  false  return." 

But  it  is  said  that,  in  all  the  cases  cited,  the  attack  upon 
the  sheriff's  return  was  made  in  the  original  case,  either 
before  or  after  judgment  and  that  while  it  was  held  that 
the  sheriff's  return  was  conclusive  upon  the  parties  in  the 
original  case,  it  was  not  held  that  such  a  return  could  not 
be  attacked  by  a  direct  proceeding  in  equity,  and  upon 
former  appeal  it  was  pointed  out  that  in  Alabama,  Ten- 
nessee, Kansas,  Arkansas,  Connecticut,  Colorado  and  Illi- 
nois, it  is  held  that  a  false  return  of  the  sheriff  can  be 
attacked  and  set  aside  by  a  direct  proceeding  in  equity. 
iVccordingly  it  was  held  upon  former  appeal  of  this  case 
that  the  alleged  false  return  of  the  sheriff  in  the  original 
r-ase  of  Jiidd  v.  Smoot  could  be  attacked  and  set  aside  in 
this  suit  in  equity. 

This  raises  the  question  whether  or  not  a  return  of  a 
sheriff  can  be  attacked  and,  if  found  to  be  false,  a  judg- 
ment at  law  by  default  founded  thereon,  can  be  set  aside 
in  a  direct  proceeding  in  equity. 

Gw\Tine  on  Sheriffs,  page  473,  thus  states  the  law:  *'It 
is  a  well  settled  principle  of  the  English  law,  that  the  sher- 
iff's return  is  not  traversable,  and  the  court  will  not  try 
on  afTidavits,  whether  the  return  of  a  sheriff  to  a  writ  is 
false,  even  though  a  strong  case  is  made  out,  showing 
fraud  and  collusion,  but  the  party  must  resort  to  his 
remedy  by  an  action  against  the  sheriff  for  a  false  return. 
In  Conneftif'ut,  the  return  of  the  sheriff  on  a  mesne  pro 
cess  is  held  to  be  only  prima  facie  evidence,  but  even  ir 
that  State,  he  cannot  falsify  it  by  his  own  evidence.  In 
most,  and  y)robably  all  of  tlie  other  States  in  the  United 
States,  llie  rule  is  established,  that  as  botweon  parties  to 
the  suit,  in  whidi  the  icturn  is  made,  and  privies,  and  the 


Sec.  5]  Service  and  Return  of  Summons  83 

officer,  except  when  the  latter  is  charged  in  a  direct  pro 
ceeding  against  him  for  a  false  return,  the  sheritf's  re- 
turn is  conclusive  and  cannot  be  impeached.  A  party  or 
privy  may  not  aver  the  falsity  of  a  return  made  by  the 
proper  officer,  without  a  direct  proceeding  against  the  offi- 
cer, even  in  chancery." 

Walker  v.  Bobbins,  14  How.  (U.  S.)  584,  was  an  injunc- 
tion to  restrain  the  enforcement  of  a  judgment,  based  upon 
a  marshal's  return  of  personal  service,  and  which  the 
deputy  marshal  who  served  the  process  testified  was  false. 
The  Supreme  Court  of  the  United  States,  speaking 
through  Mr.  Justice  Catron,  said:  "Assuming  the  fact  to 
be  that  Walker  was  not  served  with  process,  and  that  the 
marshal's  return  is  false,  can  the  bill,  in  this  event,  be 
maintained?  The  respondents  did  no  act  that  connects 
tliem  with  the  false  return;  it  was  the  sole  act  of  the 
marshal,  through  his  deputy,  for  whi^^h  he  was  responsible 
to  the  complainant,  Walker,  for  any  damages  that  were 
sustained  by  him  in  consequence  of  a  false  return.  This  is 
free  from  controversy;  still  the  marshal's  responsibility 
does  not  settle  the  question  made  by  the  bill,  which  is,  in 
general  terms,  whether  a  court  of  equity  has  jurisdiction 
to  regulate  proceedings,  and  to  afford  relief  at  law,  where 
there  has  been  abuse,  in  the  various  details  arising  on  exe- 
cution of  process,  original,  mesne  and  final.  If  a  court  o' 
chancery  can  be  called  on  to  correct  one  abuse,  so  it 
may  correct  another;  and  in  effect,  to  vacate  judgments, 
where  the  tribunal  rendering  the  same  would  refuse  re- 
lief, either  on  motion,  or  on  a  proceeding  by  audita  querela, 
where  this  mode  of  redress  is  in  use.  In  cases  of  false 
returns  affecting  the  defendant,  where  the  plaintiff  at  law 
is  not  in  fault,  redress  can  only  be  had  in  the  court  of 
law  where  the  record  was  made,  and  if  relief  cannot 
be  had  there,  the  party  injured  must  seek  his  relief  against 

the  marshal."     Accordingly  equitable  relief  was  denied. 

********** 

Hunter  v.  Stoneburner,  92  111.  75,  was  a  bill  in  equity  to 
set  aside  a  judgment  in  partition  and  a  sale  thereunder, 
on  the  ground  that  the  plaintiff  had  not  been  served  with 
process,  and  for  other  reasons.  The  sheriff's  return  was 
personal  service.  The  plaintiff  succeeded  in  the  lower 
court  and  the  defendants  appealed.     The  Supreme  Court 


84  Trial  Peactice  [Chap.  2 

of  Illinois  said:  ''It,  then,  appearing  that  appellee  was 
served  with  process,  he  must  be  bound  by  the  officer's  re- 
turn. It  is  in  rare  cases  only  that  the  return  of  the  officer 
can  be  contradicted,  except  in  a  direct  proceeding  by  suit 
against  the  officer  for  false  return.  In  all  other  cases, 
almost  without  exception,  the  return  is  held  to  be  conclu- 
sive. An  exception  to  the  rule  is  where  some  other  por- 
tion of  the  record  in  the  same  case  contradicts  the  return, 
but  it  cannot  be  done  by  evidence  dehors  the  record."  Ac- 
cordingly the  decree  of  the  lower  court  was  reversed. 

Stewart  v.  Stewart,  27  W.  Va.  167,  was  a  bill  in  equity 
to  set  aside  a  judgment  at  law,  and  the  question  arose  on 
a  motion  for  rehearing  by  a  defendant  who  had  made  de- 
fault that  the  sheriff's  return  was  false.  The  relief  was 
denied,  the  Supreme  Court  saying:  "  *  *  *  We  see  no  rea- 
son for  departing  from  the  rule  of  the  common  law.  If 
it  is  thought  wise  to  permit  the  return  of  a  sheriff  on 
mesne  or  final  process  in  any  case,  where  the  suit  is  not 
against  him  and  his  sureties  for  a  false  return,  to  be  con- 
tradicted, the  Legislature  should  furnish  the  remedy.  We 
think  the  rule  of  the  common  law  was  founded  in  wisdom. 
Others  besides  the  defendant  to  the  suit  are  interested, 
that  the  return  of  the  sheriff  should  be  regarded  as  abso- 
lutely true.  Rights  of  property  would  suffer  under  any 
other  rule,  and  there  is  sufficient  protection  against  fals' 
returns  of  sheriffs  in  the  right  of  action  directly  against 
him  and  his  sureties.  If  this  rule  is  rigidly  adhered  to, 
sheriffs  will  be  much  more  careful,  and  the  rights  of  the 
citizens  much  better  preserved,  than  if  his  returns  either  in 
mesne  or  final  process  could  be  contradicted.  The  only 
benefit,  that  could  be  given  to  the  petitioner,  would  come 
tliroiigli  permitting  her  to  contradict  the  sheriff's  return, 
that  she  was  served  with  process  in  the  suit.  lie  had  no 
authority  to  serve  the  process  as  such  officer  outside  of 
the  State.  If  he  had  done  so,  such  correction  would  entirely 
liave  destroyed  his  return.  As  we  said  in  Bowyer  v. 
Knapp,  15  W.  Va.  291,  we  do  not  mean  to  decide,  whether 
under  our  statute  the  return  of  the  sheriff  on  process  may 
not  be  contradicted  })y  plea  in  abatement  filed  in  the  suit 
at  the  proper  time.  The  court  was  justified  in  decreeing 
that  the  bill  should  be  taken  for  confessed  upon  the  return 


Sec.  5]  Sekvice  and  Return  of  Summons  85 

of  the  sheriff.     The  petition  was  properly  dismissed." 

********** 

Thomas  v.  Ireland,  88  Ky.  581,  was  a  suit  in  equity  to 
enjoin  the  enforcement  of  a  judgment  at  law  on  the  ground 
that  the  sheriff's  return  was  false  and  that  there  was  in 
fact  no  service.  The  court  said:  "It  is  well  settled  by 
this  court  that  where  the  plaintitf  acts  in  good  faith  in 
obtaining  a  judgment  upon  the  return  of  the  sheriff,  en 
dorsed  upon  the  summons,  that  it  was  executed  on  the 
defendant,  though  in  fact  it  was  not,  the  return  is  conclu- 
sive as  between  the  plaintiff  and  defendant.  The  sta- 
bility of  judgments  require  this  rule;  otherwise,  judgments 
settling  the  rights  of  parties  and  giving  remedies  for  the 
enforcement  of  these  rights  could  never  be  regarded  as 
permanent,  but  would  be  liable  to  be  set  aside,  and  the 
rights  settled  thereby  be  reopened,  when  the  facts,  not  only 
appertaining  to  the  service  of  the  summons,  but  the  merits 
of  the  controversy,  had  been  forgotten  or  rendered  un- 
availing by  reason  of  the  death  of  the  parties  or  witnesses. 
Of  course,  if  the  plaintiff  induces  the  sheriff  to  make  a  re- 
turn that  he  had  served  the  summons,  when  he  had  not, 
whereby  the  plaintiff  is  enabled  to  obtain  judgment  against 
the  defendant,  the  chancellor  would  not  hesitate  to  set  the 
judgment  aside,  upon  the  ground  that  it  was  fraudulently 
obtained.  Also,  if  he  knew  the  sheriff  had  made  a  false 
return  and  took  judgment  against  the  defendant,  notwith- 
standing, he  would  be  regarded  as  an  aider  and  abettor  of 
the  fraud,  and  the  chancellor  would  set  aside  the  judgment. 
But  as  long  as  the  plaintiff  is  an  innocent  party,  no  false 
return  of  the  sheriff,  though  procured  by  one  of  the  de- 
fendants, and  that  defendant  the  husband  of  the  wronged 
defendant  (which  is  exactly  the  case  here  if  what  the  sheriff 
says  as  to  the  first  return  is  true),  will  justify  setting  aside 
the  judgment  as  against  the  plaintiff.  His  protection  lies 
in  the  fact  that  he  is  an  innocent  party.  When  the  plaintiff 
is  an  innocent  party  the  sheriff  and  his  coadjutor,  if  he  has 
one,  are  the  wrongdoers,  and  the  wronged  party  may  have 
an  action  against  them,  or  either,  for  damages  commensu- 
rate to  the  injury  he  has  sustained  growing  out  of  the 
wrongful  act.  Also  as  the  sheriff  is  tne  wrongaoer  ana  p^ 
a  party  to  the  judgment,  the  proceeding  to  impeach  his  re- 
turn  is    collateral;    and    it   is   well    settled   that   his    re- 


S6  Tkial  Practice  [Cliap.  '2 

turn  cannot  be  impeached  in  a  collateral  proceedins:  for  the 
purpose  of  setting  aside  or  of  getting  rid  of  a  judgment  au- 
thorized by  such  a  return." 

The  petition  in  that  case  alleged  that  the  husband  of  the 
plaintiff  had  induced  the  sheriff  to  return  the  summons  as 
personally  served  on  his  wife,  the  plaintiff  in  that  action, 
so  as  to  conceal  from  her  the  fact  that  there  was  danger  of 
her  land  being  sold. 

Numerically,  the  State  courts  outside  of  Missouri  ap- 
pear to  be  equally  divided  upon  the  subject,  but  the  Su- 
preme Court  of  the  United  States  and  the  English  courts 
have  always  adhered  to  the  rule  that  the  officer's  return  is 
conclusive  upon  the  parties  to  the  suit  and  cannot  be  at- 
tacked even  in  equity,  except  where  the  plaintiff  in  the 

judgment  has  aided  or  abetted  in  the  false  return. 

********** 

Upon  principle  and  for  practical  purposes  this  is  the 
better  and  wiser  rule,  and  has  become  too  deeply  imbedded 
in  the  jurisprudence  of  this  State,  and  the  rights  of  too 
many  purchasers  at  sheriff's  sales  have  become  fixed  upon 
the  faith  of  the  rule,  to  permit  it  now  to  be  changed.  For 
it  must  be  apparent  that  if  judgments,  and  rights  acquired 
under  them  by  third  persons,  can  afterwards  be  upset  by  a 
suit  in  equity,  no  one  would  risk  money  by  buying  at  an 
execution  sale,  or,  at  best,  would  discount  the  risk  by  giving 
only  a  small  proportion  of  the  true  value  of  the  property. 
This  would  result  in  injury  to  the  debtor  and  creditor 
both,  for  the  debtor's  lands  would  not  sell  for  their  true 
value,  and  the  creditor  would  not  realize  on  his  claim  in 
full.  But  in  addition  to  this  consideration,  such  a  rule 
would  offer  a  premium  to  a  defendant  to  make  default,  let 
judgment  go  against  him,  let  his  land  be  sold,  and  a  third 
party  buy  it,  and  thus  have  his  debt  paid,  and  then  sue  in 
cfiviity  to  set  aside  the  deed  and  recover  his  land  by  dis- 
proving the  sheriff's  return.  Thus  his  debt  would  be  paid, 
his  creditor  would  be  satisfied,  the  debtor  would  recover  his 
land,  and  the  only  sufferer  would  be  the  purchaser  at  the 
judicial  sale.  Under  such  a  rule,  judicial  sales  would  not 
amount  to  much  when  the  people  once  understood  the  risks 
inr-iirred.  Tliis  is  exMftly  the  status  of  the  case  at  bar.  For 
tliese  reasons  I  think  this  case  was  improperly  decided  on 


Sec.  5]  Sebvice  and  Return  of  Summons  87 

former  appeal  and  that  the  former  decision  should  be  over- 
ruled. 

Robinson,  C.  J.,  concurs;  Brace,  J.,  concurs  in  para- 
graphs 2,  4,  5,  6,  12  and  13,  and  in  the  result ;  Burgess,  J., 
concurs  in  toto;  Gantt  and  Fox,  J.  J,,  concur  in  the  result 
for  the  reasons  expressed  in  the  separate  opinion  of  Fox,  J. ; 
Valliant,  J.,  dissents  in  an  opinion  filed  by  him. 


CROSBY  V.  FARMER. 

Supreme  Court  of  Minnesota.    1888. 

39  Minnesota,  305. 

Appeal  by  the  plaintiff  from  an  order  of  the  municipal 
court  of  St.  Paul,  setting  aside  a  judgment  by  default. 

Mitchell,  J.  Judgment-  by  default  was  rendered 
against  defendant  in  the  municipal  court  of  St.  Paul,  upon 
the  return  of  a  police  officer  that  he  had  served  the  sum- 
mons upon  defendant  in  the  city  of  St.  Paul,  Ramsey 
county,  by  leaving  a  copy  at  his  last  usual  abode,  with  a 
person  of  suitable  age  and  discretion  then  resident  therein. 
Subsequently  the  judgment  was  vacated,'  on  motion  of 
defendant  made  on  affidavits  showing  that  he  was  not  and 
never  had  been  a  resident  of  Ramsey  county,  but  at  the 
time  of  the  alleged  service  was  and  ever  since  has  been  a 
resident  of  Steele  county.  The  plaintiff  presented  no 
counter-affidavits,  but  relied  on  the  conclusiveness  of  the 
officer's  return, — contending  that  it  could  not  be  impeached  ; 
that,  if  false,  defendant's  only  remedy  was  by  action 
against  the  officer. 

This  question  has  never  been  squarely  decided  by  this 
court, — at  least  as  to  a  return  on  original  process.  *  *  * 

*  *  *  The  rule  of  the  English  common  law  is  that,  as 
between  the  parties  to  the  process  or  their  privies,  a  sher- 
iff's return  is  conclusive,  and  that  the  court  will  not  try  the 
truth  of  it  on  motion  to  set  aside  the  proceedings,  or  allow 
any  averment  against  it  to  be  taken  in  pleading;  that,  if 
false,   the   only  remedy   is   against  the   sheriff  by  action. 


88  Teial  Peactice  [Chap.  2 

Com.  Dig.  tit.  ''Eetorn"  F  2  and  G.  The  reason  usually 
given  for  the  rule  is  that  it  is  necessary  to  secure  the  rights 
of  the  parties,  and  give  validity  and  effect  to  the  acts  of 
ministerial  officers.  In  England,  process  could  only  be 
served  by  the  sheriff,  who  was  the  only  ministerial  officer 
known  to  the  courts  for  that  purpose.  Moreover,  under  the 
common  law  practice  which  obtained  there,  it  was  almost 
impossible  for  judgment  to  be  rendered  against  a  party 
without  actual  personal  notice  to  him.  Under  such  a  sys- 
tem, the  rule  might  be  convenient,  and  without  much  danger 
of  working  injustice. 

But,  under  the  practice  which  obtains  in  this  and  other 
states,  most  of  the  old  safeguards  have  been  removed ;  and 
the  necessity  for  modifying  the  rule,  and  adapting  it  to  the 
changed  condition  of  the  law,  has  been  often  felt  and  fre- 
quently  acted   upon,    especially   in    the    case    of    original 
process  by  which  the  court  acquires  jurisdiction.     In  the 
district  court  a  summons  may  be  served  by  any  person  not 
a  party  to  the  action,  and  his  affidavit  of  service  is  placed 
virtually  on  the  same  footing  as  the  return  of  the  sheriff. 
In  the  municipal  court  of  St.  Paul  the  summons  may  be 
served  by  any  policeman.    The  remedy  by  action  for  false 
return,  under  such  a  system,  would  often  be  inadequate  or 
wholly  fruitless.    Again,  the  manner  of  service  has  been  in 
other  respects  so  materially  changed  that  actual  personal 
service  is  unnecessary,  and  the  officer  making  service  must 
often   return   as   to   facts  not   within  his  personal  knowl- 
edge, but  in  the  determination  of  which  he  must  frequently 
rely  upon  information  received  from  others.    For  example, 
service  may  be  made  by  leaving  a  copy  of  the  summons  at 
the  house  of  defendant's  usual  abode,  with  a  person  of 
suitable    age    and    discretion    then    resident    therein.     In 
case  of  corporations  service  may  be  made,  not  oniy  on 
certain  specified  general  officers,  but  also,  in  certain  cases, 
upon  a  managing  or  general  agent,  or  even  upon  an  acting 
ticket    or    freight    agent.      In    case    of   minors    under    14 
years,  the  service  must  be  both  on  the  minor  personally, 
and  also  upon  his  father,  mother,  or  guardian,  or,  if  none, 
upon  tlie  person  having  the  care  or  control  of  the  minor,  or 
with  whom  he  resides,  or  by  whom  he  is  employed.  How  can 
a  slifriff  determine  where  a  man  resides,  or  who  resides 
with  him,  or  who  is  the  ticket  or  freight  agent  of  a  railway 


Sec.  5]  Service  and  Return  of  Summons  89 

company,  or  who  has  the  care  or  control  of  a  minor,  or  by 
whom  he  is  employed,  except  upon  information?  And  why 
should  his  return  as  to  these  facts  be  conclusive?  If  the'^ 
officer  makes  a  mistake,  why  should  the  defendant  be  com- 
pelled to  allow  the  judgment  against  him  to  stand,  and  re- 
sort to  his  suit  against  the  officer,  instead  of  being  per- 
mitted to  apply  in  a  direct  proceeding  in  the  action  to  set 
aside  the  false  return!  We  can  see  no  good  reason  why 
the  plaintiff  should  have  a  sum  of  money  to  which  he  is 
not  entitled,  and  the  officer  be  compelled  to  pay  the  de- 
fendant a  like  sum  for  making  what  may  have  been  an 
honest  mistake.  If  somebody  must  suffer  loss  for  the  mis- 
take, it  is  right  it  should  fall  on  him  who  made  it;  but,  if 
discovered  in  time  to  prevent  loss  to  anyone,  why  should 
not  the  mistake  be  corrected  on  motion!  There  are  very 
good  reasons  why  the  return  of  a  ministerial  officer  should 
be  held  conclusive  in  all  collateral  proceedings,  but  we  can 
see  none,  either  upon  principle  or  considerations  of  policy, 
why  it  may  not  be  impeached  for  falsity  in  direct  proceed- 
ings in  the  action;  assuming  always,  of  course,  that  no 
rights  of  third  parties  have  intervened.  Any  evils  or  in- 
convenience which  can  possibly  arise  from  permitting  this 
to  be  done  would,  in  our  judgment,  be  greatly  outweighed 
by  the  injustice  that  would  often  result  from  prohibiting  it. 
The  general  tendency,  especially  in  states  having  a  Code 
practice  like  ours,  is  to  allow  the  return  to  be  impeached 
by  an  affidavit,  on  motion  or  other  direct  proceedings  to 
vacate.  Bond  v.  Wilson,  8  Kan.  228;  Walker  v.  Lutz,  14 
Neb.  274,  (15  N.  W.  Eep.  352) ;  Wendell  v.  Mugridge,  19  N. 
H.  109;  Carr  v.  Commercial  Bank,  16  Wis.  52;  Stout  v. 
Sioux  City  d  Pacific  Ry.  Co.,  3  McCrary,  1,  (8  Fed.  Rep. 
794) ;  Van  Rensselaer  v.  Cliadivick,  7  How.  Prac.  297;  Wal- 
lis  V.  Lott,  15  How.  Prac.  567 ;  Watson  v.  Watson,  6  Conn. 
334;  Rowe  v.  Table  Mt.  Water  Co.,  10  Cal.  442. 

Some  of  the  cases  seem  to  make  a  distinction  between 
mesne  and  final  process  and  the  original  process,  like  a 
summons,  by  which  the  court  acquires  jurisdiction  of  the 
defendant.  We  confess  that  we  cannot  see  at  present  why 
there  should  be  any  such  distinction ;  but,  without  deciding 
that  question,  we  are  of  opinion  that,  upon  a  motion  madr 
in  the  action  to  vacate  a  judgment  by  default  on  the  ground 


90  Teial  Peactice  [Chap.  2 

of  no  service  of  the  summons,  the  return  of  the  officer  may 
be  impeached  by  affidavits,  as  was  done  in  this  case. 

Order  affirmed.^ 

iConclusiveness  of  Sheriff's  Betnrn.  There  is  a  great  diversity  of  judicial 
ot)inion  upon  this  subject,  and  a  close  inquiry  into  the  various  rules  and  their 
limitations  -would  be  of  little  value  here.  The  cases  given  above  illustrate  the 
antagonistic  views  which  lead  to  the  extreme  positions  on  each  side  of  the 
question.  Between  these  there  are  numberless  gradations.  The  following 
quotations  will  illustrate  the  extent  and  variety  of  the  considerations  which 
control  the  decisions  upon  this  subject. 

Kochman  v.  O'Neill,  (1903)  202  ill.  110,  66  N.  E.  1047:  "A  sound  public 
policy,  the  security  of  litigants  and  the  stability  of  legal  proceedings  demand 
that  the  return  of  the  sworn  officer  shall  not  be  set  aside  or  impeached  except 
upon  satisfactory  evidence.  Every  presumption  in  favor  of  the  return  is 
indulged,  and  it  will  not  be  set  aside  upon  the  uncorroborated  testimony  of  the 
party  upon  whom  service  purports  to  have  been  made.  (Davis  v.  Dresback,  81 
111.  393.)  Justice,  however,  requires  that  the  rules  shall  not  be  so  strict  as  to 
prevent  all  relief  against  a  return  which  is  untrue  through  fraud,  accident 
or  mistake,  and  if  it  is  clear  from  the  evidence  that  the  defendant  has  not 
been  served  the  judgment  should  be  set  aside. ' '  Similar  statement  in  West- 
man  V.  Carlson,  (1910)  86  Nebr.  847,  126  N.  W.  515. 

Waterbury  National  Bank  v.  Eeed,  (1907)  231  111.  246,  83  N.  E.  188:  "It 
is,  however,  the  law  of  this  state  that  when  a  judgment  of  a  court  of  general 
jurisdiction  recites  that  there  was  actual  service  of  process  upon  the  defend- 
ant in  apt  time  and  there  is  nothing  in  the  record  to  contradict  such  record 
or  return,  the  finding  or  return  cannot,  at  law,  be  impeached  by  evidence 
dehors  the  record,  (Rust  v.  Frothingham,  Buese,  331;  Barnet  v.  Wolf,  70  111. 
76;  Zepp  v.  Hager,  id.  223;  Harris  v.  Lester,  80  id.  307;  Hunter  v.  Stone- 
burner,  92  id.  75;)  although  in  a  proper  case  a  false  return  may  be  set  aside 
in  equity;  (Owens  v.  Ranstead,  22  111.  161;  Hickey  v.  Stone,  60  id.  458;)  and  it 
may  be  questioned  before  judgment  by  plea  in  abatement,  (Mineral  Point 
Railroad  Co.  v.  Keep,  22  111.  9;  Holloway  v.  Freeman,  id.  197;  Sibert  v.  Thorp, 
77  id.  43;  Ryan  v.  Lander,  89  id.  554;  Union  National  Bank  of  Chicago  v! 
First  National  Bank,  90  id.  56;  Chicago  Sectional  Electric  Underground  Co.  v. 
('ongdon  Brake-Shoe  Manf.  Co.,  Ill  id.  309);  or  in  case  of  default  entered 
ni.on  such  return,  on  motion  promptly  made,  the  same  may  be  set  aside 
(Brown  v.  Brown,  59  111.  315.)" 

Meyer  v.  Wilson,  (1906)  166  Ind.  651,  76  N.  E.  748:  "If,  however,  the 
pjocess  was  not  served  by  the  officer,  and  false  return  was  procured  by  the 
fraudulent  acts  of  the  plaintiff,  or  by  a  conspiracy  between  him  and  the 
o.Ti^tr,  the  same  is  not  conclusive." 

Hilt  V.  Heimberger,  (1908)  235  111.  235,  85  N.  E.  304:  "Where  rights  of 
third  persons  have  been  acquired  in  good  faith,  the  return  of  an  officer  show- 
ing the  service  of  summons  cannot  be  contradicted,  but  as  against  parties  ac- 
quiring rights  Mith  notice  of  the  facts  the  return  is  not  conclusive." 

Schott  V.  Linscott,  (1909)  80  Kan.  536,  103  Pac.  997:  "As  to  the  fact 
of  service,  the  general  rule  is  that  as  between  the  parties  to  an  action  the 
return  of  the  sheriff  is  conclusive;  but  if  his  return  is  of  a  fact  not  within 
his  personal  knowledge  but  dependent  upon  information  received  from  others, 
a  party  is  not  jtrecluded  from  an  inquiry  into  the  facts  on  which  jurisdiction  de- 
pends."  Snme  rule  stated  in  Krutz  v,  Isaacs,  (1901)  25  Wash.  566,  66  Pac. 
141. 

Lofke  v.  Locke,  (1894)  18  R.  I.  716,  30  Atl.  422:  Motion  to  set  aside  decree 
and  roinstiite  the  case  for  trial  on  the  ground  that  defendant  had  no  notice  of 
the  [lending  thereof.  "While  it  is  true  that  an  officer's  return  upon  a  writ 
is  conclusive  and  cannot  be  controverted  incidentally  by  motion  or  plea  ex- 
cept in  cases  especially  provided  for  by  statute,  Angell  v.  Bowler,  3  R.  I.  77, 
yet,  as  \inder  section  2  of  chapter  26  of  the  Judiciary  Act,  the  court  has 
control  over  its  decrees  for  the  period  of  six  months  after  the  entry  thereof, 
and    '  may,   for   caus«   shown,  set  aside   the   same   and   reinstate  the   ease,   or 


Sec.  6]  Service  and  Return  of  Summons  91 

make  new  entry  and  take  other  proceedings,  with  proper  notice  to  the  parties, 
with  or  without  terms,  as  it  may  by  general  rule  or  s]iecial  order  direct,'  it  is 
clearly  within  the  power  of  the  court  to  grant  the  relief  asked  for  in  this 
ease  without  any  infringement  of  the  rule  above  stated,  and  without  any  rc- 
ilection  upon  the  officer  who  served  the  writ. ' ' 

Michels  v.  Stork,  (1883)  52  Mich.  260,  17  N.  W.  833.  This  case  contains 
an  extended  review  of  the  authorities  on  this  question  in  an  opinion  by  Justios 
Oooley. 


Section  6.    Privilege  from  Service. 
PARKER  V.  MARCO. 

Court  of  Appeals  of  New  York.    1893, 

136  New  York,  585. 

Maynard,  J.  The  defendant  is  a  resident  of  South  Car- 
olina and  an  action  had  been  brought  there  against  him  in 
the  Federal  Circuit  Court,  by  the  plaintiff,  who  is  a  resi- 
dent of  this  state.  On  April  6,  1892,  the  defendant  came 
to  the  city  of  New  York  at  the  instance  of  the  plaintiff  to 
attend  an  examination  of  the  plaintiff  and  his  witnesses  be- 
fore a  notary  public,  which  by  the  agreement  of  the  counsel 
for  the  respective  parties  had  been  set  down  for  that  date. 
The  plaintiff  procured  the  defendant's  assent  to  the  examin- 
ation upon  the  statement  that  he  desired  to  be  in  readiness 
to  try  the  cause  at  the  ensuing  April  Circuit,  to  be  held  at 
the  city  of  Charleston.  When  the  time  for  taking  the  testi- 
mony arrived  the  defendant  was  informed  by  plaintiff's 
counsel  that  he  had  abandoned  his  intention  to  take  the  evi- 
dence as  proposed,  for  the  reason  that  on  account  of  sick- 
ness in  his,  the  counsel's  family,  the  plaintiff  would  not  be 
prepared  to  go  to  trial  at  the  April  Circuit,  and  he  expected 
to  be  able  to  produce  his  witnesses  in  court  when  the  trial 
should  take  place  at  a  subsequent  term.  It  was  then  late 
in  the  afternoon  and  the  defendant  returned  to  his  hotel 
and  remained  over  night,  and  the  next  morning  started  for 
liis  home  in  South  Carolina.  He  was  intercepted  at  the 
ferry  by  a  process  server,  who  served  him  with  a  summons 
in  this  action  brought  by  the  plaintiff  in  the  supreme  Court 
of  this  state  for  the  same  cause  of  action  at  issue  in  the 
Federal  Court  in  South  Carolina.    The  defendant  had  no 


92  Tkial  Pkactice  [Chap.  2 

business  in  New  York  except  that  which  related  to  the  pro- 
posed examination.  The  defendant  has  appealed  from  an 
order  of  the  General  Term,  reversing  an  order  of  the  Spe- 
cial Term,  which  set  aside  the  service  of  the  summons  upon 
the  ground  that,  when  served,  he  was  privileged  from 
service. 

Under  Section  863  of  the  Revised  Statutes  of  the  United 
States  the  plaintiff  had  an  absolute  right  to  take  the  testi- 
mony of  his  witnesses  in  this  state  to  be  used  upon  the 
trial  of  the  action  in  South  Carolina  upon  giving  reason- 
able notice  to  the  defendant.  The  compulsory  character  of 
the  proceeding  was  not  affected  by  the  waiver  of  notice 
and  the  fixing  of  the  time  by  the  agreement  of  parties. 
{Plimpton  V.  Winslotv,  9  Fed.  R.  365.)  The  same  section 
provides  that  a  person  may  be  required  to  appear  and 
testify  before  the  notary  in  the  same  manner  as  witnesses 
in  open  court,  and  section  915  of  our  own  Code  authorizes 
any  state  judge  to  issue  a  subpoena  to  compel  the  attend- 
ance of  a  witness  in  such  a  case.  In  the  trial  of  the  action 
the  notary  thus  becomes  the  arm  of  the  court,  and,  as  was 
held  In  re  Rindskopf  (24  Fed.  R.  542)  represents  the  court 
pro  hac  vice. 

The  privilege  of  a  suitor  or  witness  to  be  exempt  from 
service  of  process  while  without  the  jurisdiction  of  his  res- 
idence for  the  purpose  of  attending  court  in  an  action  to 
which  he  is  a  party  or  in  which  he  is  to  be  sworn  as  a  wit- 
ness is  a  very  ancient  one.  (Year  Book  13,  Hen.  IV.,  I.  B. 
Viner's  Abr.  "Privilege.") 

It  has  always  been  held  to  extend  to  every  proceeding  of 
a  judicial  nature  taken  in  or  emanating  from  a  duly  con- 
stituted tribunal  which  directly  relates  to  the  trial  of  the 
issues  involved.  It  is  not  simply  a  personal  privilege,  but 
it  is  also  the  privilege  of  the  court,  and  is  deemed  neces- 
sary for  the  maintenance  of  its  authority  and  dignity  and 
in  order  to  promote  the  due  and  eflicient  administration  of 
justice.  (Person  v.  Grier,  QQ  N.  Y.  124;  Mattheivs  v.  Tufts, 
87  id.  568.)  At  common  law  a  writ  of  privilege  or  protec- 
tion would  be  granted  to  the  party  or  witness  by  the  court 
in  which  the  action  was  pending,  which  would  be  respected 
l)y  all  other  courts.  We  cannot  find  that  the  power  to  issue 
Huch  a  writ  has  been  abrogated  by  legislation,  and  it  doubt- 
less exists,  and  the  writ  may  still  be  granted  by  courts 


Sec.  6]  Sekvice  and  Retuen  of  Summons  93 

possessing  a  common  law  jurisdiction;  but  while  the  grant- 
ing of  the  writ  is  proper,  it  is  not  necessary  for  the  enjoy- 
ment of  the  privilege,  and  the  only  office  which  it  can  per- 
form is  to  afford  "convenient  and  authentic  notice  to  those 
about  to  do  what  would  be  a  violation  of  the  privilege,  and 
to  set  it  forth  and  command  due  respect  to  it."  {Bridges 
V.  Sheldon,  7  Fed.  R.  4-1:.)  The  tendency  has  been  not  to  re- 
strict but  to  enlarge  the  right  of  privilege  so  as  to  alford 
full  protection  to  parties  and  witnesses  from  all  forms  of 
civil  process  during  their  attendance  at  court  and  for  a 
reasonable  time  in  going  and  returning.  {Lamed  v.  Grif- 
fin, 12  Fed.  Rep.  592.) 

Hearings  before  arbitrators,  legislative  committees,  reg- 
isters and  commissioners  in  bankruptcy,  and  examiners  and 
( ommissioners  to  take  depositions,  have  all  been  declared  to 
je  embraced  within  the  scope  of  its  application.  (Bacon's 
Abr.  "Privilege";  Sand  ford  v.  Chase,  3  Cow.  381;  Mat- 
thews V.  Tufts,  supra;  Hollender  v.  Hall,  18  Civ.  Pro.  394; 
19  id.  292;  Thorp  v.  Adams,  id.  351;  Bridges  v.  Sheldon; 
Plimpton  V.  Winslow;  and  Lamed  v.  Griffin,  supra.)  It  has 
even  been  extended  to  a  suitor  returning  from  an  appoint- 
ment with  his  solicitor  for  the  purpose  of  inspecting  a  paper 
in  his  adversary's  possession  in  preparation  for  an  examin- 
ation before  a  master,  {Sidgier  v.  Birch,  9  Ves.  69)  and 
while  attending  at  the  registrar's  office  with  his  solicitor,  to 
settle  the  terms  of  a  decree  {Neivton  v.  Askeiv,  6  Hare,  319) ; 
and  while  attending  from  another  state  to  hear  an  argu- 
ment in  his  own  case  in  the  Court  of  Appeals  {Pell's  case, 
1  Rich.  L.  197.)  No  good  reason  can  be  perceived  why  the 
privilege  should  not  be  extended  to  a  party  appearing 
upon  the  examination  of  his  adversary's  witnesses,  where 
the  testimony  is  taken  pursuant  to  the  authority  of  law, 
and  can  be  read  upon  the  trial  with  the  same  force  and 
effect  as  if  it  had  been  taken  in  open  court.  It  is  a 
proceeding  in  the  cause,  which  materially  affects  his  rights, 
and  the  necessity  for  his  attendance  is  quite  as  urgent  as 
it  would  be  if  the  examination  was  had  at  the  trial.  But 
we  do  not  think  that  the  question  of  the  necessity  of  his 
presence  is  material.  It  is  the  right  of  the  party,  as  wpU 
as  his  privilege,  to  be  present  whenever  evidence  is  to  be 
taken  in  the  action,  which  may  be  used  for  the  purpose  of 
affecting  its  final  determination.    It  is  essentially  a  part 


94  Trial,  Practice  [Chap.  2 

of  the  trial,  and  should  be  so  regarded  so  far  as  it  may  be 
necessary  for  the  protection  of  the  suitor.  There  have 
l)een  many  analogous  cases  in  the  Federal  Courts  where 
the  right  to  the  privilege  has  been  upheld.  In  Bridges  v. 
Sheldon,  (supra),  the  action  was  pending  in  the  U.  S.  Cir- 
cuit for  Vermont.  A  reference  had  been  ordered  to  a 
master  to  take  and  state  an  account.  The  master  on 
motion  of  the  plaintiff  had  made  an  order  for  the  taking  of 
a  deposition  before  a  commissioner  in  the  state  of  Iowa. 
The  defendant,  while  attending  before  the  commissioner  in 
Iowa,  was  served  with  process  in  a  suit  brought  by  the  plain- 
tiff for  the  same  cause  of  action  as  in  the  Federal  court. 
Judge  Wheeler,  in  very  strong  terms,  condemned  the  pro- 
cedure, and  held  that  the  defendant  was  absolutely  priv- 
ileged from  service,  and  that  the  conduct  of  the  plaintiff  in 
causing  such  service  to  be  made  was  a  contempt  of  court, 
and  could  be  punished  as  such.  It  seems  that  in  such  a  case 
a  party  has  a  two-fold  remedy.  He  may  move  in  the  court, 
whose  privilege  has  been  violated,  to  punish  the  party  in 
that  court  who  has  been  guilty  of  such  violation,  or  he  may 
move  in  the  court  out  of  which  the  process  has  been  im- 
properly issued  to  vacate  it,  and  the  motion  will  be  granted. 
********** 

It  may  be  assumed  that  the  plaintiff  acted  in  entire  good 
faith,  and  that  his  procedure  was  not  a  device  to  secure  the 
presence  of  the  defendant  within  the  territorial  jurisdic- 
tion of  the  courts  of  this  state.  In  the  view  we  take  of  the 
privilege  of  the  defendant,  the  plaintiff's  motive  is  of  no 
importance. 

The  order  of  the  General  Term  should  be  reversed,  and 
the  order  of  the  Special  Term  affirmed,  with  costs. 

All  concur  except  Gray,  J.,  dissenting. 

Order  reversed. 


Sec.  6]  Sbbvice  and  Return  of  Summons  95 

GREENLEAF  Y.  PEOPLE'S  BANK  OF  BUFFALO. 

Supreme  Court  of  North  Carolina.    1903. 

133  North  Carolina,  292. 

Clark,  C.  J.,  concurring.  The  defendant  Morey  was 
served  with  summons  in  this  case  while  at  a  hotel  in  this 
State.  He  contends  that  because  he  was  a  lawyer,  resident 
in  another  State,  and  was  attending  court  in  this  State  as 
counsel  in  a  cause  therein  pending,  the  service  should  be 
struck  out.  The  proposition  is  a  novel  one  in  a  land  where 
equality  before  the  law  is  the  ruling  principle  and  where 
special  privilege  to  any  class  of  our  citizens  is  not  only  not 
recognized  by  law  but  is  prohibited  by  the  Constitution. 
A  careful  examination  shows  no  ground  for  the  alleged  ex- 
emj^tion  of  lawyers  from  service  of  summons.  There  is  no 
precedent  in  England  to  sustain  the  proposition,  and  none 
in  this  country  save  a  single  case,  a  very  recent  one — Hoff- 
man V.  Circuit  Judge,  113  Michigan,  109 ;  38  L.  R.  A.  663 ; 
67  Am.  St.  Rep.,  458 — which  holds  that  a  lawyer,  resident 
in  the  same  State,  is  privileged  from  service  of  a  summons 
while  attending  the  Supreme  Court  of  the  State  or  going 
or  returning  therefrom,  but  none  of  the  authorities  cited  in 
that  opinion  sustain  its  conclusion.  The  reason  given  in 
the  opinion  is  that  while  by  statute  in  that  State  the  pro- 
hibition of  the  arrest  of  counsel  in  a  civil  suit  is  restricted 
to  the  actual  sitting  of  a  court  at  which  he  is  engaged,  that 
this  does  not  repeal  the  common-law  exemption  of  counsel 
from  service  of  summons.  But,  on  the  other  hand,  the  most 
eminent  lawyer  which  that  State  (Michigan)  has  produced. 
Judge  Cooley,  in  a  note  to  his  work  on  Constitutional  Limi- 
tations (5th  Ed.),  p.  161,  says:  "Exemption  from  arrest 
is  not  violated  by  the  service  of  citation  or  declaration  in 
civil  cases."  Besides,  there  was  at  common  law  no  exemp- 
tion of  lawyers  from  service  of  process  other  than  arrest, 
and  the  reason  for  the  latter  was  that  it  would  be  an  in- 
jury to  clients  whose  cause  had  been  prepared  for  trial  by 
such  coansel  to  suddenly  deprive  them  of  his  services,  but 
service  of  a  summons  does  not  have  that  effect. 

In  Bobbins  v.  Lincoln,  27  Fed.  Rep.,  342  (United  States 
Circuit  Court  for  Illinois),  it  is  well  said:  "Inasmuch  as 


96  Trial  Peactice  [Chap.  2 

resident  attorneys  may  be  served  with  summons  while  in 
attendance  upon  court,  an  attorney  from  another  State  has 
no  greater  privilege. "  This  is  exactly  in  point  here.  It  is 
well  known  that  no  lawyer  in  this  State  has  ever  in  its  his- 
tory been  privileged,  or  contended  even  that  he  was  priv- 
ileged, from  service  of  summons  while  attending  court.  If 
he  were,  as  the  Constitution,  Art.  IV.,  sec.  22,  now  provides 
that  "the  courts  are  always  open,"  no  lawyer  or  judge 
could  ever  be  served  with  summons.  In  England,  Black- 
stone  says  (3  Bl.  Com.,  289),  that  lawyers  could  not  be  ar- 
rested on  civil  process  while  in  attendance  upon  court,  but 
could  be  served  with  a  bill,  without  arrest,  which  was  equiv- 
alent to  service  of  a  summons.  The  same  is  stated  in  8 
Bacon's  Abr.  ''Privilege"  B.,  with  the  modification  that  if 
an  attorney  is  sued  with  another  (as  in  this  case),  "he  is 
not  privileged  from  arrest,  even  though  it  is  during  his 
attendance  in  court,"  the  evident  reason  being  to  prevent 
class  discrimination.  The  exemption  of  lawyers  from  ar- 
rest, it  seems,  has  now  been  repealed  in  England.  In  this 
State  the  English  privilege  of  exemption  of  lawyers  from 
arrest  has  never  been  recognized.  It  is  well  known  that 
one  of  the  most  distinguished  lawyers  and  judges  of  this 
State,  whose  portrait  now  hangs  on  the  walls  of  this  cham- 
ber, was  arrested  and  imprisoned  for  debt,  and  long  pre- 
vented from  attending  upon  court.  This  barbarous  pro- 
ceeding of  imprisonment  for  debt,  handed  down  from  the 
common  law,  should  have  been  repealed  long  before  it  was, 
but  while  it  was  in  force  our  predecessors  applied  it  im- 
partially, and  the  bench  did  not  hold  their  own  members  or 
their  profession  exempt.  There  was  not  at  common  law, 
and  has  not  been  in  this  State,  any  exemption  of  any  one 
from  service  of  summons,  and  the  exemption  from  arrest 
under  our  statute  is  conferred  only  upon  witnesses  and 
jurors.  Tlie  Code,  sees.  13G7  and  1735.  And  even  wit- 
nesses and  jurors  are  not  exempted  from  service  of  sum- 
mons, since  such  service  would  not  deprive  the  court  of 
their  presence.  There  is  no  reason  why  lawyers  should  be 
privileged  from  either  arrest  or  service  of  summons  any 
more  than  other  oHicers  of  the  court,  as  sheriffs,  clerks, 
criers  and  the  like,  and  the  legislative  power  has  therefore 
seen  fit  to  make  the  exemption  apply  only  to  witnesses  and 


Sec.  6]  Service  and  Beturn  of  Summons  07 

jurors,  and,  as  to  them,  to  make  the  exemption  extend  to 
freedom  from  arrest  only. 

As  to  non-residents,  in  Cooper  v.  Wyman,  122  N.  C,  784, 
this  Court  held  that  non-resident  witnesses  and  suitors 
coming  into  this  State  solely  for  the  purpose  of  litigation 
were  exempt  from  service  while  here  for  that  purpose  only. 
This  was  put  upon  the  ground  of  necessitv,  because  the 
State  could  not  compel  their  presence,  and  that  since  no 
one  else  could  fill  their  functions  it  was  in  the  interest  of 
justice  to  give  them  "a  safe  conduct."  But  this  reasoning 
has  not  obtained  in  some  States,  notably  Illinois,  which 
holds  that  neither  are  exempt  from  service  of  summons. 
Greer  v.  Young,  120  111.  184,  citing  authorities.  In  Nichols 
V.  Goodlieart,  5  111.  App.,  574,  it  was  held  that  a  defendant 
involuntarily  in  the  State,  by  virtue  of  criminal  process,  is 
not  exempt  from  service  of  summons,  citing  Williams  v. 
Bacon,  10  Wend.  (N.  Y.),  636.  Other  States  hold  that  the 
rule  is  restricted  to  witnesses  only.  Shearman  v.  Gunlatch, 
37  Minn.,  118.  Other  States  extend  the  exemption  to 
parties  also,  since  they  have  become  competent  as  witnesses 
{Mitchell  v.  Huron,  53  Michigan,  541),  and  our  State  has 
adopted  that  rule,  but  restricts  the  exemption  to  those  two 
— "non-resident  witnesses  and  parties."  An  exhaustive 
brief  of  all  the  authorities,  showing  that  the  privilege  ex- 
tends only  to  non-resident  witnesses  and  parties,  will  be 
found  in  the  notes  (eighteen  pages)  to  Mullen  v.  Sanborn, 
25  L.  R.  A.,  721-738.  No  court  whatever  has  in  any  case 
extended  the  exemption  to  non-resident  lawyers.  The 
nearest  approach  to  it  is  Trust  Co.  v.  Railroad,  74  Fed, 
Rep.,  442,  in  which  a  subpoena  served  upon  non-resident 
counsel,  which  prevented  his  returning  home  and  attending 
to  business  he  had  left  unprovided  for,  was  set  aside.  That 
case  is  not  sustained  by  any  previous  authority,  and  evi- 
dently rests  more  upon  the  ground  stated  therein,  that  the 
non-resident  subpoenaed  was  president  of  a  railway  com- 
pany, than  because  he  was  also  a  lawyer,  but,  if  sound,  it 
is  very  far  from  sustaining  an  alleged  exemption  from  ser- 
vice of  summons,  which  did  not  prevent  Morey  from  re- 
turning home  and  adjusting  his  business,  for  the  trial  of 
his  case  is  for  a  subsequent  term. 

The  United  States  Constitution,  Art.  I,  sec.  6,  prohibits 
the  arrest  of  a  member  of  the  House  of  Representatives  or 
T.  p.— 7  " 


98  Teial  Peacticb  [Chap.  2 

a  Senator  during  the  session,  except  for  treason,  felony 
and  breach  of  the  peace.  There  is  a  similar  provision  as 
to  the  members  of  the  Legislature  in  Nebraska.  The  nu- 
merous and  uniform  authorities  that  such  privilege  from 
arrest  does  not  exempt  from  service  of  process  without 
arrest  are  collected  in  a  very  recent  and  able  opinion  (1903) 
in  Berlet  v.  Weary,  93  N.  W.,  238  (Neb.) ;  60  L.  R.  A.,  609; 
and  in  Rhodes  v.  Walsh,  55  Minn.,  542 ;  23  L.  R.  A.,  632 ; 
Gentry  v.  Griffith,  27  Tex.,  461.  For  a  stronger  reason  this 
is  so  where,  as  in  most  States  as  well  as  in  this,  lawyers  are 
not  exempt  even  from  arrest.  In  Lyall  v.  Goodivin,  4  Mc- 
Lean, 29,  a  service  of  a  summons  from  a  United  States 
Court  upon  a  judge  of  the  State  Supreme  Court,  in  his  own 
court  and  while  actually  on  duty,  was  set  aside  because 
being  a  supposed  indignity  to  the  court  and  interference 
with  its  business.  Even  if  this  can  be  sustained  and  ex- 
tended to  counsel,  neither  the  dignity  of  the  court  nor  the 
despatch  of  business  in  this  case  could  be  interfered  with 
by  the  service  of  summons  upon  Morey  at  the  hotel. 

Nor,  in  the  nature  of  things,  is  there  any  reason  why  a 
non-resident  lawyer,  coming  here  for  a  consideration  in  the 
pursuit  of  his  profession,  should  be  exempt  from  the  ser- 
vice of  summons  any  more  than  a  non-resident  physician 
or  minister  or  a  member  of  any  other  calling.  The  plain- 
tiff sues  for  services  rendered  to  the  defendants  in  this 
State  at  their  request.  If  Morey  is  exempt  from  service 
because  here  in  the  exercise  of  his  profession,  a  ''commer- 
cial tourist"  is  by  the  same  right  exempt  from  being 
served  with  summons  in  an  action  for  a  hotel  bill  incurred 
while  prosecuting  his  calling.  Indeed,  his  ground  for  ex- 
emption would  be  more  plausible,  for  he  is  engaged  in 
interstate  commerce  and  the  lawyer  is  not.  Service  of 
summons  upon  neither  will  interfere  with  the  dignity  of 
the  courts  or  their  despatch  of  business.  Our  State  extends 
no  preference  to  non-resident  lawyers  over  those  living 
liere.  The  Code,  sees.  18  and  19;  Manning  v.  Railroad,  122 
N.  C,  p.  828. 

As  far  back  as  1769  (10  George  III.,  ch.  50),  England 
f)assed  a  statute  confirming  the  ruling  of  Sir  Orlando 
Bridgeman  in  Benyon  v.  Evelyn  Tr.,  14  Car.,  2  C.  B.  Roll, 
over  a  century  before  (1661),  and  cited  in  Knoivles'  Case, 
12  Mod.,  at  p.  64  (1694),  that  the  privilege  which  members 


Sec.  6]  Service  and  Return  or  Summons  9'j 

of  Parliament  enjoyed  of  being  exempt  from  arrest  did  not 
exempt  them  from  being  sued  or  from  service  of  ordinary 
process  without  arrest.  The  privilege  was  deemed  too  in- 
vidious a  class  privilege  even  for  that  age  and  country,  and 
the  claim  was  denied  by  Parliament  itself  and  the  conten- 
tion put  at  rest.  Cassidey  v.  Stewart,  2  Man.  &  Gr.  437.  It 
is  not  for  an  American  court  to  reverse  the  process  and 
hold  that  because  lawyers  were  formerly  privileged  from 
arrest  during  attendance  upon  court,  therefore,  they  are 
exempt  from  being  sued  and  being  served  with  a  sum- 
mons. By  the  census  of  1900  there  were  114,703  practicing 
lawyers  in  the  United  States,  of  whom  1,263  were  in  North 
Carolina.  If,  during  all  these  years,  lawj^ers  had  possessed 
the  privilege  of  exemption  from  the  service  of  summons, 
assuredly  more  than  one  case  could  be  found  to  assert  it. 
If  it  had  been  so  asserted  it  would  have  been  promptly  re- 
pealed by  statute,  seeing  that  the  Parliament  in  England 
passed  an  act  denying  a  similar  claim  that  its  own  mem- 
bers were  exempt  from  service  of  summons  because  priv- 
ileged from  arrest,  and  that  members  and  Senators  in  Con- 
gress are  not  privileged  from  service  of  summons,  though 
expressly  exempted  from  arrest  on  civil  process  by  the  Con- 
stitution. Even  the  former  privilege  of  lawyers  from  ar- 
rest has  been  modified  in  some  States  and  expressly  re- 
pealed in  others,  and  in  others  still,  as  in  North  Carolina, 
it  has  never  been  recognized  or  acknowledged. 

Equally  unfounded  is  the  claim  that  service  upon  the 
other  defendant,  the  officer  of  a  corporation  {Jester  v. 
Steam  Packet  Co.,  131  N.  C,  54),  was  invalid  because  made 
when  he  was  attending  a  sale  of  land  under  a  decree  of 
court.  Such  sale  may,  like  other  acts,  come  before  a  court 
for  review,  but  the  sale  itself  is  not  a  judicial  proceeding, 
and  no  exemption  from  service  of  process  extends  to  it. 
Such  exemptions  are  restricted  to  non-resident  witnesses 
and  parties,  and  are  permitted,  not  on  their  own  account 
or  for  their  own  benefit,  but  for  the  benefit  of  the  court  in 
obtaining  evidence  at  a  trial,  when  the  court  cannot  compel 
the  presence  of  those  who  can  testify  to  facts  in  issue  in 
the  litigation.  This  can  have  no  application  to  the  attend 
ance  of  a  party  at  a  sale,  under  a  decree  in  the  cause,  for 
his  own  convenience  or  benefit. 

In  the  days  of  Privilege,  under  the  rule  of  Ecclesiastics 


100  Tkial  Peactice  [Chap.  2 

'q  England,  they  held  their  own  profession  exempt  from 
the  jurisdiction  of  the  civil  courts,  and  set  apart  certain 
places  where  all  men  were  exempt  from  service  of  process 
under  the  * 'Privilege  of  Sanctuary."  The  last  remnant  of 
such  class  privileges  was  repealed.  21  James  I.  Judges 
have  never  claimed  for  the  legal  profession  or  the  courts 
any  similar  exemption,  either  as  to  persons  or  places.  With 
lawyers  for  judges,  justice  knows  neither  class  nor  caste, 
and  admits  no  special  privileges,  and  for  its  administra- 
tion "every  place  is  a  temple  and  all  seasons  summer." 

The  judgment  setting  aside  the  service  of  summons  must 
])e  reversed. 

Douglas,  J.,  concurs  in  the  above  concurring  opinion. 


CHAPTER  III. 
APPEARANCE. 

Section  1.    What  Constitutes  a  Special  Appeakance. 

BELKNAP  V.  CHARLTON. 

Supreme  Court  of  Oregon.    1893, 

25  Oregon,  41. 

This  action  was  commenced  by  H.  A.  Belknap,  H.  P. 
Belknap  and  S.  I.  Belknap,  partners,  in  the  Circuit  Court 
for  Crook  county  against  C.  M.  and  Mamie  Charlton,  resi- 
dents of  Morrow  county,  to  recover  the  sum  of  sixty-one 
dollars  and  twenty  cents  upon  an  account  for  goods,  wares, 
and  merchandise  sold  and  delivered,  and  for  services  ren- 
dered. A  writ  of  attachment  was  duly  issued  and  served 
in  Crook  county  by  attaching  in  the  hands  of  one  J.  F. 
Moore  certain  moneys  belonging  to  the  defendants,  but 
the  summons  in  the  action  was  not  served  on  the  defend- 
ants. Some  three  months  after  the  action  was  commenced, 
and  the  writ  of  attachment  had  been  served,  the  defendants 
appeared  specially  by  their  attorney  for  the  purpose  of 
.applying  to  the  court  to  discharge  the  attachment  because 
the  action  had  been  commenced  in  the  wrong  county,  and 
because  no  service  had  been  made  upon  them,  which  motion 
l)eing  overruled,  judgment  was  rendered  against  them  by 
default.  They  now  appeal,  claiming  that  such  appearance, 
being  special,  gave  the  court  no  jurisdiction  to  render  a 
judgment  against  them.    Reversed. 

Opinion  by  Me.  Justice  Bean. 

1.  It  is  admitted  that  the  voluntary  appearance  of  a 
defendant  in  an  action  is  equivalent  to  the  service  of  a 
summons,  and  waives  all  defects  in  the  process  (Code,  § 
(52),  but  the  contention  for  defendant  is  that  no  appear- 
ance, except  as  provided  in  section  530  of  the  Code, — that 
is,  either  by  answer,  demurrer,  or  giving  plaintiff  written 
notice, — can  be  deemed  an  appearance  within  the  meaning  of 

101 


102  Teial  Pkactice  [Chap.  3 

section  62  of  our  Code.  Section  530  provides,  that  a  defend- 
ant appears  in  an  action  wiien  lie  answers,  demurs,  or  gives 
plaintiff  written  notice  of  his  appearance,  and  until  he  does 
so  appear  he  shall  not  be  entitled  to  be  heard,  or  be  served 
with  notice  of  subsequent  proceedings  in  such  action  or  suit, 
or  in  any  proceeding  pertaining  thereto,  except  the  giving  of 
an  undertaking  in  the  provisional  remedies  of  arrest,  at- 
tachment, or  the  delivery  of  personal  property.  The  ar- 
rangement of  this  section  in  the  Code  under  the  title  of 
"Notices  and  Service  and  Filing  of  Papers,"  as  well  as  its 
language,  indicates  clearly  that  its  only  purpose  is  to  define 
what  shall  constitute  such  an  appearance  in  an  action  as 
will  entitle  the  defendant  to  be  heard,  as  a  matter  of  right, 
and  entitle  him  to  the  service  of  notice  of  motions  and  sub- 
sequent proceedings  in  the  action  required  by  law  to  be 
served :  Bank  v.  Rogers,  12  Minn.,  529 ;  Grant  v.  Schmidt, 
22  Minn.,  1.  It  was  not,  we  think,  intended  to  define  a 
voluntary  appearance  within  the  meaning  of  section  62, 
and  has  no  bearing  upon  the  question  of  jurisdiction.  A 
defendant  may  appear  and  submit  himself  to  the  jurisdic- 
tion of  the  court  in  many  ways,  without  either  answering, 
demurring,  or  giving  i^laintiff  written  notice  of  his  appear- 
ance. He  may  do  this  by  appearing  in  person,  or  by  attor- 
ney in  open  court,  by  attacking  the  complaint  by  motion,  or 
by  an  application  for  a  continuance,  and  in  many  other 
ways  which  will  readily  suggest  themselves  to  one  familiar 
with  the  course  of  judicial  proceedings.  But  before  he  is 
entitled,  as  a  matter  of  right,  to  be  heard  in  the  action,  or 
in  any  proceedings  pertaining  thereto,  or  to  be  served  with 
notice,  he  must  appear  in  one  of  the  ways  provided  in  sec- 
tion 530.  The  question  before  us,  therefore,  must  be  deter- 
mined without  reference  to  that  section,  which,  as  we  con- 
ceive, has  no  bearing  upon  tlie  question  as  to  whether  a 
special  appearance  for  the  purpose  of  applying  for  the  dis- 
charge of  an  attachment  is  a  submission  to  the  jurisdiction 
of  the  court  so  as  to  authorize  it  to  proceed  to  judgment  in 
the  action  without  the  service  of  summons. 

2.  It  is  claimed  by  the  plaintiffs  that  while  a  defendant 
may  appear  specially  to  object  to  the  jurisdiction  of  the 
court  over  him  on  account  of  the  illegal  service  of  process, 
(Kinkade  v.  Myers,  17  Or.  470,  21  Pac.  Bep.  557),  he  must 
keep  out  of  court  for  every  other  purpose,  and  that  any 


Sec.  1]  Appearance  103 

appearance  which  calls  into  action  the  power  of  the  court 
Tor  any  purpose  except  to  decide  upon  its  own  jurisdiction. 
is  a  general  appearance,  and  waives  all  defects  in  the  ser 
vice  of  process,  and  many  authorities  are  cited  to  sustain 
this  position.  The  principle  to  be  extracted  from  the  de- 
cisions on  this  subject  is,  that  where  the  defendant  appears 
and  asks  some  relief  which  can  be  granted  only  on  the 
hypothesis  that  the  court  has  jurisdiction  of  the  cause  and 
the  person,  it  is  a  submission  to  the  jurisdiction  of  the 
court  as  completely  as  if  he  had  been  regularly  served  with 
process,  whether  such  an  appearance  by  its  terms  be  limited 
to  a  special  purpose  or  not:  Coad  v.  Coad,  41  Wis.  26; 
Blackburn  v.  Siveet,  38  Wis.,  578;  Pry  v.  Hannibal  S  St. 
Jo.  R.  R.  Co.,  73  Mo.,  126;  Sargent  v.  Flaid,  90  Ind.,  501; 
Layne  v.  Ohio  River  R.  R.  Co.,  35  W.  Va.  438,  14  S.  E.  Rep. 
123;  Handy  v.  Ins.  Co.,  37  Ohio  St.,  366;  Bucklin  v.  Strick- 
ler,  32  Neb.,  602,  49  N.  W.  Rep.,  371;  Burdette  v.  C organ, 
26  Kansas,  102;  Aidtman  &  Taylor  Co.  v.  Steinan,  8  Neb., 
109.  This  seems  to  be  a  reasonable  rule,  and  one  which 
will  adequately  protect  the  rights  of  the  parties,  and  it  de- 
termines the  effect  of  defendant's  appearance  from  the 
nature  of  the  relief  which  he  seeks  to  obtain.  If  he  asks 
the  court  to  adjudicate  upon  some  question  affecting  the 
merits  of  the  controversy,  or  for  some  relief  which  pre- 
supposes jurisdiction  of  the  person,  and  which  can  be 
granted  only  after  jurisdiction  is  acquired,  he  will  be 
deemed  to  have  made  a  general  appearance,  and  to  have 
submitted  himself  to  the  jurisdiction  of  the  court,  and  can- 
not, by  any  act  of  his,  limit  his  appearance  to  a  special 
purpose.  But,  if  granting  the  relief  asked  would  be  con- 
sistent with  a  want  of  jurisdiction  over  the  person,  he  may 
appear  for  a  special  purpose  without  submitting  himself  to 
the  jurisdiction  of  the  court  for  any  other  purpose.  It  has 
consequently  been  held  that  an  attachment  and  the  action 
out  of  which  it  issues,  are  so  inseparately  connected  that 
the  defendant  cannot  appear  and  question  the  validity  of 
the  attachment  by  a  traverse  of  the  facts  alleged  in  the 
affidavit,  or  by  contesting  the  truth  of  the  grounds  upon 
which  it  issued,  without  submitting  himself  to  the  jurisdic- 
tion of  the  court  in  the  action,  because  by  so  doing  the 
court  is  called  upon  to  entertain  and  determine  questions 
which  can  be  considered  only  after  jurisdiction  has  at- 


104  Trial  Pkactice  [Chap.  3 

taclied:  Greenivell  v.  Greenwell,  26  Kan.  530;  Bury  v. 
Conklin,  23  Kan.,  460;  Wood  v.  Young,  38  Iowa,  102;  Dun- 
can V.  Wkkliife,  4  Met.  (Ky.)  118.  But  where  a  defendant 
appears,  and  without  questioning  the  merits  of  the  action, 
or  the  truth  of  the  grounds  upon  which  the  attachment 
issued,  moves  to  discharge  the  attachment  for  want  of  the 
jurisdictional  facts  to  sustain  it,  he  asks  no  relief  the  grant- 
ing of  which  would  be  inconsistent  with  an  entire  want  of 
jurisdiction  over  the  person,  and  hence  does  not  appear  in 
the  action  so  as  to  authorize  the  court  to  proceed  to  judg- 
ment against  him :  Drake,  Attach.  §  112 ;  Glidden  v.  Pack- 
ard, 28  Cal.,  649;  Johnson  v.  Buell,  26  111.,  QQ;  Bonner  v. 
Brown,  10  La.  Ann.  334. 

Now,  in  the  case  at  bar,  the  appearance  of  the  defend- 
ants was  not  for  the  purpose  of  contesting  the  truth  of  the 
grounds  upon  which  the  attachment  issued,  or  the  merits 
of  the  action,  but  to  vacate  the  attachment  for  the  reason, 
as  appears  from  the  affidavit  accompanying  the  motion, 
that  the  action  had  been  commenced  in  the  wrong  county, 
and  that  it  was  a  great  injustice  and  wrong  to  them  to  have 
their  property  thus  held  under  an  attachment  when  there 
was  no  means  of  obtaining  jurisdiction  over  their  persons. 
This  appearance  was,  therefore,  not  for  the  purpose  of  sub- 
mitting to  the  jurisdiction  of  the  court,  or  asking  it  to 
entertain  or  determine  any  question  which  could  only  be 
considered  after  jurisdiction  had  attached,  but  it  was  for 
the  sole  purpose  of  objecting  to  the  validity  of  the  attach- 
ment for  irregularities  in  the  proceedings,  the  granting  of 
which  would  have  been  entirely  consistent  with  the  claim 
that  the  court  had  no  jurisdiction  of  the  person.  By  their 
motion  to  discharge  the  attachment  for  the  reason  stated, 
the  defendants  appeared  for  no  purpose  incompatible  with 
the  supposition  that  the  court  had  acquired  no  jurisdiction 
over  them  on  account  of  a  want  of  service  of  the  sum- 
mons, and  we  therefore  think  there  was  no  waiver  of  pro- 
cess. Nothing  less  than  the  express  language  of  a  statute, 
or  the  necessary  implication  therefrom,  or  the  overbearing 
weight  of  autliority,  will  justify  a  court  in  holding  that  a 
defendant  in  an  action  commenced  in  the  wrong  county,  in 
violation  of  section  44  of  the  Code,  could  not  appear  and 
apply  for  the  discharge  of  an  attachment  against  his  prop- 
erty, for  irregularities,  without  being  required  to  submit 


Sec.  1]  Appearance.  105 

himself  to  the  jurisdiction  of  the  court  for  the  purpose  of 
the  entire  action;  and  it  is  not  material  in  such  case, 
whether  the  motion  happened  to  be  well  founded  or  not, 
but  the  question  is,  did  it  go  to  the  merits,  or  was  it  based 
upon  some  technical  grounds  supposed  to  be  sufficient  to 
render  the  attachment  invalid.  If  a  defendant  may  not 
thus  appear  and  resist  what  he  supposes  to  be  a  wrongful 
attachment  without  subjecting  his  person  to  the  jurisdic- 
tion of  the  court,  he  must  either  suffer  his  property  to  be 
held  under  a  pretended  attachment  for  an  indefinite  time, 
or  waive  a  statutory  right  to  be  sued  in  the  county  where 
he  resides  or  may  be  found.  This  the  law  will  not  exact  or 
require. 

4.  It  was  suggested  that  the  remedy  of  the  defendants 
in  such  case  is  by  motion  to  dismiss  the  action  for  want  of 
jurisdiction,  but  such  a  motion  would  be  unavailing.  The 
court  has  jurisdiction  of  the  subject-matter,  and  an  action  is 
commenced  by  filing  the  complaint,  and  there  is  no  pro- 
vision of  the  law  authorizing  it  to  be  dismissed  because  the 
summons  has  not  been  served:  Code,  <§  §  51,  59.  It  follows, 
therefore,  that  the  action  of  the  court  below  in  entering 
judgment  against  the  defendants  without  service  of  process 
upon  them  was  unauthorized,  and  the  judgment  must  be 
reversed. 

Reversed. 


FULTON  V.  EAMSEY. 

Supreme  Court  of  Appeals  of  West  Virginia.    1910. 

67  West  Virginia,  321. 

PoFFENBAEGER,  J.  The  solo  qucstlou  iu  this  cause,  name- 
ly, whether  Joseph  Eamsey,  Jr.,  George  J.  Gould,  and  Will- 
iam E.  Guy,  non-resident  defendants,  proceeded  against  by 
order  of  publication,  appeared  herein,  in  the  court  below, 
by  attorneys,  so  as  to  enable  that  court  to  render  a  personal 
decree  against  them,  grows  out  of  the  operations  of  what 
is  styled  in  an  agreement,  and  popularly  known,  as  "the 
Little  Kanawha  Syndicate,"  which  agreement  is  dated  De- 


106  Teial  Practice  [Chap.  3 

cember  2, 1901,  and  was  signed  by  said  Ramsey,  Gould,  Guy, 
and  others. 

That  syndicate  seems  to  have  been  formed  for  the  pur- 
pose of  purchasing  the  Little  Kanawha  Railroad,  large 
areas  of  coal  lands,  and  other  properties  in  this  state.  *  *  * 

In  anticipation  of  the  launching  of  this  enterprise,  Mr. 
Edward  D.  Fulton  had  acquired  an  option  on  the  Little 
Kanawha  Railroad  as  well  as  the  title  to,  and  options  upon, 
large  areas  of  coal  and  coal  lands  and  other  property  in 
the  counties  of  Braxton,  Gilmer,  and  Lewis.  Under  certain 
agreements,  and  with  intent  to  dispose  of  the  same  to  the 
syndicate,  he  assigned  the  option  on  the  railroad,  at  the  op- 
tion price,  and  assigned  his  coal  and  coal  land  options,  and 
conveyed  his  coal  and  coal  lands,  at  certain  prices  named 
in  the  assignments  and  deeds,  to  the  St.  Louis  Union  Trust 
Company,  to  hold  as  trustee  for  the  syndicate.  For  some 
reason,  the  syndicate  concluded  to  abandon  its  plan  and  sell 
all  its  property.  Accordingly,  it  failed  to  carry  out  its  con- 
temjDlated  arrangements  with  Fulton,  and  he  brought  this 
suit,  in  the  Circuit  Court  of  Braxton  county,  to  compel 
specific  performance  of  his  alleged  contract  with  the  syndi- 
cate. *  *  * 

On  the  1st  day  of  December,  1908,  the  following  order, 
relied  upon  by  Fulton  as  showing  a  general  appearance, 
was  entered:  ''This  day  R.  W.  McMichael  and  John  B. 
Morrison,  attorneys  practicing  in  this  court,  appeared  and 
asked  the  court  to  permit  them  to  appear  specially  for 
Joseph  Ramsey,  Jr.,  George  J.  Gould,  and  William  E.  Guy, 
as  managers  of  the  Little  Kanawha  Syndicate,  and  ask  a 
continuance  of  this  cause  for  thirty  or  sixty  days  to  enable 
them  to  prepare  their  defense,  or  to  determine  whether 
they  would  desire  to  appear  generally,  and  stating  that 
they  did  not  desire  to  appear  generally  for  said  parties  at 
this  time,  but  that  they  desired  to  move  the  court  to  con- 
tinue the  cause  without  appearance  otlier  than  specially  for 
the  purposes  of  the  continuance.  The  plaintiff,  by  his 
counsel,  resisted  the  said  motion  to  continue  the  hearing, 
and  thereupon  said  counsel  for  said  defendants  Ramsey, 
Gould,  and  Guy,  announced  that  it  was  their  desire  to  with- 
draw and  not  appear  to  the  case,  and  thereupon  counsel  for 
plaintiff,  and  while  said  counsel  for  defendants  were  pres- 
ent, asked  that  the  cause  be  submitted  for  hearing  and  ac- 


Sec.  1]  Appearance.  107 

cordingly  the  said  cause  was  submitted  for  hearing."  *  •  * 

********** 

We  think  the  order  was  nothing  more  than  an  inquiry, 
addressed  to  the  court,  for  information  as  to  what  could 
be  done  by  way  of  obtaining  a  postponement  of  action  in 
the  cause,  without  submitting  to  the  jurisdiction  of  the 
court  for  all  purposes,  or  a  conditional,  not  an  absolute  and 
unqualified,  motion  for  a  continuance.  The  motion,  as  re- 
corded, if  it  can  be  regarded  as  a  motion,  signified  a  desire 
for  a  continuance,  if  it  could  be  had  without  a  waiver  of 
service  of  process  upon  the  defendants,  but  distinctly  de- 
clared unwillingness  to  ask  or  take  a  continuance,  if  it  in- 
volved such  a  waiver.  It  does  not  say  in  express  terms 
that  a  motion  to  continue  was  made.  On  the  contrary,  it 
says  McMichael  and  Morrison  asked  the  court  to  per- 
mit them  to  appear  specially  for  their  clients  and  ask  a 
continuance,  to  enable  them  to  determine  whether  they 
would  desire  to  appear  generally,  and  stated  that  they  did 
not  desire  to  appear  generally  at  that  time.  It  then  says 
counsel  for  plaintiff  resisted  "said  motion  to  continue." 
That  means  the  motion  or  request  made.  It  was  not  in 
terms  a  motion,  and,  read  in  the  light  of  the  protest,  sub- 
mitted along  with  it,  it  cannot  be  regarded  as  anything 
more,  in  substance  and  effect,  than  an  offer  to  move  for  a 
continuance,  if  it  could  be  done  without  waiving  process, 
accompanied  by  a  declaration  of  intent  not  to  move  at 
all,  if  such  action  involved  waiver,  and  an  immediate  dec- 
laration of  determination  not  to  say  or  do  anything  more, 
after  having  been  informed  that  a  motion  for  a  continu- 
ance, so  made  and  described  upon  the  record,  would  be  in 
law  a  submission  to  the  jurisdiction  of  the  court. 

We  apprehend  no  dissent  from  the  pro^DOsition  that  the 
establishment  of  the  jurisdiction  of  a  court,  whether  over 
the  person  or  the  subject  matter,  must  be  affirmatively 
shown  by  the  record.  Groves  v.  Grant  County  Court,  42 
W.  Va.,  587,  600,  26  S.  E.  460.  Something  must  be  done  to 
confer  it.  Jurisdiction  of  the  person  may  be  acquired  by 
implication,  arising  out  of  some  act  done,  or  by  direct  and 
positive  acknowledgement  thereof;  but  in  either  event  it 
should  clearly  appear.  It  ought  to  be  reasonably  free  from 
uncertainty  and  doubt.  A  favorite  statement  of  the  rule, 
respecting  the  acquisition  of  jurisdiction  by  implication  or 


108  Trial  Practice  [Chap.  3 

waiver,  is  this:  "By  appearance  to  the  action  in  any  case, 
for  any  other  purpose  than  to  take  advantage  of  the  de- 
fective execution,  or  non-execution,  of  process,  a  defendant 
places  himself  precisely  in  the  situation  in  which  he  would 
be  if  process  were  executed  upon  him,  and  he  thereby 
waives  all  objection  to  the  defective  execution  or  non-execu- 
tion of  process  upon  him."  State  v.  Coal  Co.,  49  W.  Va. 
143,  38  S.  E.  539;  Lumber  Co.  v.  Lance,  50  W.  Va.  640,  41 
S.  E.  128;  Layne  v.  Railroad  Co.,  35  W.  Va.  438,  14  S.  E. 
123;  Blankenship  v.  Railivay  Co.,  43  W.  Va.  135,  27  S.  E. 
355;  Mahany  v.  Kephart,  15  W.  Va.  609;  Bank  v.  Bank,  3 
W.  Va.  386.  This  is  a  declaration  of  a  general  principle, 
to  be  read  in  the  light  of  the  facts  and  circumstances  under 
which  it  is  applied,  in  seeking  its  true  meaning.  Some  at- 
tention must  also  be  paid  to  its  terms.  It  must  be  an  ap- 
pearance for  a  purpose  in  the  cause,  not  one  merely  col- 
lateral' to  it.  In  this  state,  litigants  have  put  themselves 
within  this  rule,  for  the  most  part,  by  asking  or  accepting 
some  sort  of  relief  in  the  cause,  consistent  with  the  hypothe- 
sis of  a  submission  and  inconsistent  with  any  other  view, 
such  as  a  continuance.  No  instance  can  be  found  in  which 
a  party  has  been  held  to  have  impliedly  bound  himself  to 
submission,  without  having  asked  or  received  some  relief  in 
the  cause  or  participated  in  some  step  taken  therein.  Mere 
presence  in  the  court  room  when  the  case  is  called,  or  ex- 
amination of  the  papers  in  it  filed  in  the  clerk's  office,  is  not 
enough.  Nor  could  a  conversation  with  plaintiff's  counsel 
or  the  judge  of  the  court,  about  the  case,  be  regarded  as  an 
appearance.  No  decision  goes  that  far.  Under  this  text  in 
3  Cyc.  504,  ''Any  action  on  the  part  of  defendant,  except  to 
object  to  the  jurisdiction,  which  recognizes  the  case  as  in 
court,  will  amount  to  a  general  appearance,"  a  long  list  of 
decisions  is  cited,  but,  in  every  one  of  them,  something  was 
done  in  the  cause — some  affirmative  act  was  done  to  delay, 
speed,  or  defend  the  cause.  In  every  instance  the  conduct, 
deemed  a  waiver,  amounted  to  more  than  a  mere  inquiry  or 
conversation  about  it.  The  test,  according  to  a  late  decision 
of  the  Federal  Supreme  Court  {Merchant's  Heat  &  Light 
Co.  V.  Cloiv  S  Sons,  204  U.  S.  286,  27  Sup.  Ct.  285),  is 
whether  the  defendant  became  an  actor  in  the  cause.  The 
instances  of  the  assumption  of  the  role  of  actor  in  a  suit 
disclosed  by  the  federal  decisions,  are  such  as  the  taking 


Sec.  1]  Appearance.  109 

of  a  continuance;  filing  a  demurrer  to  plaintiff's  pleadings, 
without  limiting  it  to  the  question  of  jurisdiction;  filing  a 
plea  of  intervention,  pleading  to  issue  or  to  the  merits  in 
the  first  instance ;  or  filing  sets-off,  counter-claims,  or  notices 
of  recoupment.  Broad  as  is  this  doctrine  of  waiver,  it  does 
not  cover  all  acts  done  by  a  defendant.  He  may  talk  even 
to  the  court  about  the  merits  of  the  cause  without  subject- 
ing himself  to  it.  In  Citizens'  Saving  £  Trust  Co.  v.  Rail- 
road Co.,  205  U.  S.  46,  27  Sup.  Ct.  425,  argument  upon  the 
merits  of  the  cause  was  indulged  in,  at  the  hearing  upon 
the  sufficiency  of  the  pleas  to  the  jurisdiction,  and  this  was 
relied  upon  as  constituting  a  general  appearance;  but  Mr. 
Justice  Haelan,  speaking  for  the  court,  said:  "This  is  too 
harsh  an  interpretation  of  what  occurred  in  the  court  be- 
low. There  was  no  motion  for  the  dismissal  of  the  bill  for 
want  of  equity.  The  discussion  of  the  merits  was  per- 
mitted or  invited  by  the  court  in  order  that  it  might  be  in- 
formed on  that  question  in  the  event  it  concluded  to  con- 
sider the  merits  along  with  the  question  of  the  sufficiency 
of  the  pleas  to  the  jurisdiction.  We  are  satisfied  that  the 
defendants  did  not  intend  to  waive  the  benefit  of  their  qual- 
ified appearance  at  the  time  of  filing  the  pleas  to  the  juris- 
diction." *  *  *  In  Fairhank  S  Co.  v.  Cincinnati,  etc.,  Ry. 
Co.,  54  Fed.  420,  4  C.  C.  A.  403,  38  L.  R.  A.  271,  the  court 
held  as  follows:  ""Where  a  defendant  appears  specially 
for  the  purpose  of  moving  to  quash  the  return  on  the  sum- 
mons, the  fact  that,  in  such  motion,  it  also  prays  judgment 
whether  it  should  be  compelled  to  plead,  for  the  reason  that 
it  is  a  non-resident  corporation,  does  not  constitute  a 
waiver  of  the  objection  to  the  service."  These  precedents 
amply  sustain  the  view  that  something  substantially  bene- 
ficial to  the  defendant  or  detrimental  to  the  plaintiff,  re- 
lating to  or  affecting  the  progress  of  the  cause,  asked,  done, 
or  accepted  by  the  former,  is  essential  to  the  establishment 
of  a  waiver  of  process  or  service  thereof.  There  must  be 
something  more  than  a  mere  pretext  for  the  claim  of  juris- 
diction over  him.  He  must  either  enter  an  appearance,  ask 
some  relief  in  the  cause,  accept  some  benefit  as  a  step  there- 
in or  do  something  from  which  the  necessary  implication  of 
submission  to  the  jurisdiction  of  the  court  over  his  person 
arises.  "The  principle  to  be  extracted  from  the  decisions 
on  the  subject  as  to  when  a  special  appearance  is  converted 


110  Trial  Peactice  [Chap.  3 

into  a  general  one  is  that,  where  the  defendant  appears  and 
asks  some  relief  which  can  only  be  granted  on  the  hypothe- 
sis that  the  court  has  jurisdiction  of  the  cause  and  the 
person,  it  is  a  submission  to  the  jurisdiction  of  the  court 
as  completely  as  if  he  had  been  regularly  served  with  pro- 
cess, whether  such  an  appearance,  by  its  terms,  be  limited 
to  a  special  purpose  or  not."    2  Ency.  PI.  &  Pr.  625.    ''The 
expression  'for  any  purpose  connected  with  the  cause,'  how- 
ever, is  not  to  be  taken  as  wholly  unrestricted  in  meaning. 
The  appearance  must  have  some  relation  to  the  merits  of 
the  controversy,  and  the  purpose  must  be  to  invoke  some 
action  on  the  part  of  the  court  having  direct  bearing  in 
some  way  upon  the  question  of  the  judgment  or  decree 
proper  to  be  entered."    Bank  v.  Knox,  133  Iowa,  443,  446, 
109  N.  W.  201.    The  general  principle,  upon  which  we  rely, 
was  applied  by  the  Supreme  Court  of  Massachusetts  in 
Loivrie  v.  Castle,  198  Mass.  82,  83  N.  E.  1118,  under  circum- 
stances even  more  unfavorable  to  the  defendant  than  those 
presented  here.    The  non-resident  defendant  in  that  case, 
within  10  days  after  the  return  day  of  the  writ,  applied  to 
the  court  for  an  extension  of  the  time  within  which  he  could 
appear,  in  order  that  he  might  decide  whether  to  waive  the 
lack  of  proper  service  and  voluntarily  appear,  or  to  insist 
upon  his  rights  as  a  non-resident,  and  the  court  allowed 
such  extension.    After  the  expiration  of  the  10  days,  but 
within  the  period  of  the  extension  allowed,  he  moved  to  dis- 
miss the  action,  stating  in  his  motion  that  he  appeared  only 
for  the  purpose  of  moving  a  dismissal,  and  the  motion  was 
sustained.    The  appellate  court  held  it  to  be  within  the  in- 
herent power  of  the  trial  court  to  grant  such  an  extension, 
without  prejudice  to  the  right  to  except  to  the  jurisdiction, 
and  affirmed  the  judgment  of  dismissal.    In  delivering  the 
opinion  of  the  court,  Hammond,  Judge,  said:    "It  is  to  be 
borne  in  mind  that  this  is  not  a  case  where  a  defendant, 
upon  whom  process  has  been  duly  served,  and  who,  there- 
for, is  within  the  jurisdiction  of  the  court  and  liable  to  de- 
fault if  he  does  not  seasonably  appear,  asks  for  delay.    It  is 
a  case  where  a  non-resident  defendant  who,  for  lack  of 
service  upon  him,  is  not  within  the  jurisdiction  and  cannot 
be  brought  within  it,  fearing  lest  the  court  may  regard  the 
service  sufficient  and  default  him,  comes  into  court,  and 
says,  in  substance,  that  he  is  in  doubt  whether  to  waive 


Sec.  IJ  Appearance.  Ill 

proper  service  and  voluntarily  appear,  or  to  insist  upon  liii^ 
rights  as  a  non-resident,  and  ask  for  time  to  decide.  Cer- 
tainly it  is  a  part  of  the  inherent  power  in  a  court  to  set  a 
time  within  which  the  non-resident  must  make  up  his  mind 
and  act  accordingly,  and  that  was  all  the  court  did.  The 
motions  for  dismissal  were  properly  before  the  court." 
Against  this  express  decision  of  a  reputable  and  able  court, 
under  a  state  of  facts  less  favorable  to  the  defendant  than 
those  presented  here,  and  other  decisions,  showing  that 
something  substantial  must  be  asked  or  done  by  the  defend- 
ant, relating  to  or  affecting  the  merits  of  the  cause,  we 
have  nothing  but  a  generalization,  founded  upon,  and,  there- 
for, to  be  interpreted  by,  facts  falling  far  short  of  those 
disclosed  here,  for  the  proposition  that  [a  defendant,  who 
makes]  ^  a  mere  offer  to  move  for  a  continuance  provided  it 
can  be  done  without  a  waiver  of  service,  accompanied  by 
his  declaration  of  intention  not  to  appear  generally  nor  to 
ask  or  take  such  continuance,  if  it  involved  such  waiver, 
and  signification  of  his  desire  and  determination  to  with- 
draw the  request,  for  nothing  but  a  request  had  been  made, 
on  being  informed  that  such  a  motion  would  be  a  general 
appearance,  is  bound  thereby.  We  feel  amply  justified, 
upon  authority  as  well  as  upon  reason  and  principle,  in 
withholding  our  assent  to  it,  and  saying  such  action 
did  not  constitute  a  general  appearance.  *  *  * 

Affirmed. 
[Beannon  and  Williams,  J.  J.,  dissent.] 

1  There   appears  to  be  a  misprint  in   the   published   opinion,  which  is  here 
sought  to  be  corrected  bj  introducing  the  words  inclosed  in  brackets. 


112  Trial  Practice  [Chap.  3 

Section  2.     Manner  of  Making  Special  Appearance. 

WALL  V.  CHESAPEAKE  &  OHIO  EAILWAY 
COMPANY. 

United  States  Circuit  Court  of  Appeals,  Seventh 
Circuit.     1899. 

87  Circuit  Court  of  Appeals,  129, 

BuNN,  District  Judge.  *  *  *  The  summons  issued  by  the 
Superior  Court  of  Cook  county  was  returned  with  an  in- 
dorsement of  service  as  follows: 

"Served  this  writ  on  the  within-named  Chesapeake  & 
Ohio  Railway  Company,  a  corporation,  by  delivering  a  copy 
thereof  to  U,  L.  Truitt,  the  northwestern  passenger  agent 
of  said  corporation,  this  12th  day  of  April,  1898.  The 
president  of  said  corporation  not  found  in  my  county. 

"James  Pease,  Sheriff. 
"By  B.  Gilbert,  Deputy." 

After  this  return  was  made,  and  the  declaration  filed,  the 
defendant  proceeded  to  remove  the  case  to  the  United 
States  Circuit  Court  for  the  northern  district  of  Illinois, 
and,  when  so  removed,  entered  its  special  appearance  for 
the  purpose  of  moving  to  set  aside  the  return  of  the  sum- 
mons on  the  ground  that  U.  L.  Truitt,  the  person  on  whom 
it  was  served,  was  not  the  defendant's  agent,  or  a  person  on 
whom  proper  service  of  summons  could  be  made.  The 
motion  to  set  aside  was  founded  upon  the  affidavits  of 
Ulysses  L.  Truitt  and  H.  W.  Fuller,  the  general  passenger 
agent  of  the  defendant,  setting  forth  that  at  the  time  of 
the  service  Truitt  was  jn  the  employ  of  the  defendant  com- 
pany for  the  purpose  of  influencing  persons  who  might  be 
desirous  of  travelling  from  Chicago  and  vicinity  to  points 
east  of  Cincinnati  and  Lexington  to  patronize  those  rail- 
way lines  loading  out  of  Chicago  that  made  connections  with 
defendant's  road  at  Cincinnati  and  Lexington;  that  Truitt 
had  no  other  connection  with  the  defendant,  and  had  no 
power  or  autliority  from  said  defendant,  either  express  or 
implied,  to  make  any  contract  or  rates  for  transportation 
over  the  railway  of  the  defendant,  and  that  his  authority 
was  strictly  limited  to  conveying  information  concerning 


Sec.  2]  Appearance.  113 

existing  rates  as  established  by  the  officials  of  the  defend- 
ant company,  and  concerning  the  connections  and  time 
made  and  facilities  possessed  by  the  defendant  in  and  about 
its  passenger  traffic,  and  had  no  other  authority  whatevei- ; 
♦hat  the  defendant  was  a  resident  of  the  state  of  Virginia, 
having  its  principal  office  at  Eichmond,  in  that  state,  and 
was  not  operating  any  railway  in  said  county  of  Cook,  and 
had  no  place  of  business  therein.  Upon  these  affidavits  (no 
counter  affidavits  being  filed)  the  court  below,  by  its  order, 
set  aside  the  service  of  the  summons,  to  which  ruling  the 
plaintiff  duly  excepted.  ***** 

The  contention  is  that  the  practice  adopted  to  get  rid  of 
the  service  by  motion  to  quash  and  set  aside  was  irregular 
and  unjustified  in  law,  and  that,  instead  of  proceeding  by 
motion,  the  defendant  should  have  filed  a  plea  in  abatement, 
and  had  a  trial  of  the  question  by  a  jury.  This  is  an  im- 
portant and  radical  contention,  and  the  ground  upon  which 
it  is  sought  to  support  it  is  that  it  is  the  practice  in  such 
cases  recognized  and  established  by  the  Supreme  Court  of 
the  state  of  Illinois.  That  court  first  made  such  a  ruling  in 
Railicay  Co.  v.  Keep,  22  111.  9,  and  has  in  numerous  de- 
cisions since  adhered  to  it,  and  it  is  contended  that  this 
court  should  follow  the  state  practice.  But  this  contention 
cannot  be  supported,  either  upon  reason  or  authority. 

Under  these  decisions,  it  is  evident  that  the  law  vests  a 
reasonable  discretion  in  the  federal  courts  to  judge  in  any 
f^iven  case  how  far  they  will  feel  bound  to  follow  the  prac- 
tice or  decisions  of  the  state  courts.    There  can  be  no  doubt 
that  the  rule  upon  this  question  of  practice  prevailing  in 
the  Illinois  state  courts  is  contrary  to  the  general  rule  on 
the  subject  in  this  country,  as  well  as  in  England.    There  is 
no  more  reason  for  requiring  a  plea  in  abatement  and  a 
jury  trial  to  test  the  question  of  a  sufficient  service  of  a 
summons  than  there  would  l)e  to  require  the  same  proceed- 
ing, including  a  jurj^  trial,  in  ail  cases  where  now  a  motion 
is  held  to  be  the  proper  remedy.    The  constitutional  right 
to  a  jury  trial  obtains  whenever  there  is  any  question  at 
issue  involving  the  life,  liberty,  or  property  of  the  citizen. 
But  a  motion  to  quash  a  service  of  summons,  or  any  other 
process  or  order,  for  insufficiency  in  the  service,  involves 
no  such  substantial  right.     The  setting  aside  of  service 
T.  p.— 8 


114  Tbial  Peacticb  [Chap.  3 

does  not  affect  the  writ  or  the  status  of  the  action  in  court. 
Another  service  can  be  made,  and  the  action  proceed.  If 
the  original  process  were  exhausted,  a  new  summons  could 
be  issued.  If  the  objection  were  to  the  writ  itself,  a  plea 
in  abatement  would  be  the  proper  remedy,  the  office  of 
which  is  to  give  the  plaintiff  a  better  writ.  1  Chitty  PI. 
446-457.  But  here  the  plaintiff  still  has  his  writ. 
The  order  only  sets  aside  the  service,  as  being  un- 
warranted and  insufficient  in  law.  No  substantial  right 
is  affected  by  the  decision.  There  are  many  matters  pend- 
ing in  the  progress  of  a  case  which  are  daily  determined 
upon  motion  that  are  much  more  important  in  affecting 
substantial  rights  than  a  motion  to  set  aside  an  irregular 
service  of  process.  Take,  for  instance,  the  motion  for  a 
new  trial  upon  newly  discovered  evidence  after  the  plaintiff 
has  recovered  a  substantial  verdict.  The  court,  in  its  dis- 
cretion, may  set  aside  the  verdict  upon  a  motion.  Whether 
the  plaintiff  will  ever  be  able  to  obtain  another  is  uncertain, 
and  yet  no  one  would  think  of  objecting  to  trying  such  a 
question  before  the  court  upon  motion  supported  and  op- 
posed by  affidavits. 

The  practice  in  the  United  States  Circuit  Court  for  this 
circuit  was  fairly  well  established  by  precedent  when  this 
action  was  begun.  So  that  if  the  defendant  had  resorted 
to  a  plea  in  abatement,  instead  of  making  a  motion,  he 
would  have  subjected  himself  to  the  criticism  that  he  was 
departing  from  the  usual  practice  adopted  in  such  cases. 
In  Fairhank  &  Co.  v.  Cincinnati,  N.  0.  S  T.  P.  Ry.  Co., 
supra,  [9  U.  S.  App.  212,  4  C.  C.  A.  403,  54  Fed.  420]  a  sim- 
ilar motion  was  made  and  heard  before  Judge  Blodgett  at 
the  circuit  without  question  as  to  the  propriety  of  the  prac- 
tice, and  an  order  made  quashing  the  service.  Judge  Blod- 
gett delivered  an  opinion,  holding  the  service  insufficient, 
which  was  affirmed  by  this  court,  where  no  question  was 
made  as  to  the  proper  practice  being  by  motion.  In  Ameri- 
can Cereal  Co.  v.  Eli  Pettljohn  Cereal  Co.,  70  Fed.  276,  the 
same  practice  was  adopted,  and  the  service  set  aside  upon 
motion;  Judge  Showalter  delivering  an  opinion  justifying 
the  practice,  and  giving  good  and  sufficient  reason  for  it, 
as  follows : 

"Tlie  determining  consideration  is  that  the  matter  at 
issue,  however  it  may  result,  will  not  end  the   suit.     If 


Sec.  2]  Appearance.  115 

found  against  the  defendant,  tlie  defendant  is  in  court  and 
must  plead ;  if  in  favor  of  the  defendant,  the  return  of  the 
writ  is  vacated  or  quashed,  and  the  suit  remains  pending; 
whereas  a  plea,  either  in  abatement  or  in  bar,  if  made  out 
by  proofs,  puts  an  end  to  the  proceeding.  The  view  that  a 
motion  to  be  determined  upon  affidavits  is  the  proper  prac- 
tice in  such  cases  is  sustained  by  English  decisions," — 
citing  Hemp  v.  Warren,  2  Dowl.  (N.  S.)  758;  Preston  v. 
Lamont,  1  Exch.  Div.  361. 

In  the  last  of  the  above-named  English  cases,  Amphlett, 
B.,  in  a  concurring  opinion,  gives  the  reason  for  having 
the  question  of  service  determined  summarily  upon  mo- 
tion, instead  of  by  plea,  as  follows : 

''The  decision  of  the  judge  at  chambers  can  be  contested 
on  appeal,  and,  if  necessary,  in  the  house  of  lords.  There 
is  convenience  in  this,  because  it  is  a  speedy  and  inexpen- 
sive mode  of  determining  that  question  before  any  expense 
is  incurred  upon  the  merits  of  the  action,  whereas,  if  the 
question  may  be  raised  by  plea,  all  the  expenses  of  the  ac- 
tion may  be  thrown  away  *  *  *  Convenience  and  jus- 
tice, I  think,  require  that  this  question  should  not  be  the 
subject  of  a  plea." 

In  the  state  courts  in  this  country,  while  some  question 
has  been  made  as  to  the  conclusiveness  of  the  sheriff's 
return,  it  has  generally  been  held,  that  it  is  only  prima 
facie  true,  and  that  the  truth  or  falsity  of  the  return  may 
be  determined  upon  motion  supported  by  affidavit.  The 
rule  in  England  at  the  common  law  was  that  the  sheriff's 
return  was  conclusive  and  could  not  be  disputed,  and  the 
defendant's  only  remedy  was  by  an  action  against  the 
sheriff  for  a  false  return.  But  in  this  country,  where  we 
have  so  many  different  codes  of  practice,  and  so  many 
kinds  of  substituted  service,  such  a  rule  would  be  incon- 
venient, unjust,  and  impracticable.  Upon  examination  of 
a  great  many  American  cases,  we  believe  the  general  rule 
in  this  country,  with  some  dissenting  cases  like  those  in 
Illinois,  to  be  this:  That  the  sheriff's  return  stands  in  the 
first  instance  as  the  affidavit  of  the  sheriff,  but  is  subject 
to  be  disputed  by  affidavits  on  the  part  of  the  defendant 
showing  to  the  satisfaction  of  the  court,  upon  motion  to 
quash,  that  the  return  is  not  true  in  point  of  fact,  or,  as  in 
the  case  at  bar,  is  insufficient  in  law.    Carr  v.  Bank,  16  Wis. 


116  Tkial  Peactice  [Chap.  3 

50;  Bond  v.  Wilson,  8  Kan.  228;  Crosby  v.  Fanner,  39 
Minn.  305,  40  N.  W.  71;  Walker  v.  Lutz,  14  Neb.  274,  15  N. 
W.  352 ;  Wendell  v.  Mugridge,  19  N.  H.  109 ;  Stout  v.  i^aiZ- 
roa^  Co.,  3  McCrary  1,  8  Fed.  794;  Van  Rensselaer  v.  Chad- 
luick,  7  How.  Prac.  297;  Wallis  v.  Lo^^,  15  How.  Prac.  567; 
Watson  V.  Watson,  6  Conn.  334;  i^oi(;e  v.  Water  Co.,  10 
Cal.  442.  In  this  case  the  sheriff  returned  that  he  had 
made  service  upon  U.  L.  Truitt,  Northwestern  passenger 
agent  of  the  defendant.  If  this  return  had  been  true,  the 
service  would  have  been  good.  But  it  is  very  clear  from 
the  affidavits  filed  that  it  was  not  true.  Truitt  was  not 
Northwestern  passenger  agent  of  the  com^Dany,  or  any 
other  agent,  but  a  mere  employe  for  a  certain  purpose. 
The  sheriff  was  mistaken,  and  there  was  no  need  to  resort 
to  the  clumsy  method  of  a  plea  in  abatement  and  a  trial 
by  jury  to  ascertain  this  fact. 

It  has  been  suggested  that,  allowing  the  practice  by  mo- 
tion to  be  correct  and  preferable,  still,  in  analogy  to  the 
practice  under  a  plea  in  abatement  of  giving  the  plaintiff 
a  better  writ,  the  defendant  should  state  in  his  affidavits 
on  whom  the  summons  may  be  properly  served,  or,  if  there 
be  no  such  person  in  the  district,  to  state  that  fact.  No 
authority  is  cited  for  such  a  rule,  and  we  have  searched 
in  vain  for  a  precedent  to  warrant  it.  *  *  *  There  is  no 
suggestion  in  any  of  the  adjudicated  cases  that  this  doc- 
trine has  any  application  to  a  motion  to  set  aside  service. 
It  only  applies  to  a  plea  in  abatement  where  the  objection 
is  to  the  writ  itself.  *  *  *  The  judgment  of  the  circuit 
court  is  affirmed. 

[Dissenting  opinion  filed  by  Woods,  Circuit  Judge.] 


GREER  V.  YOUNG. 

Supreme  Court  of  Illinois.    1887, 

i  120  Illinois,  184. 

Mr.  Justice  Mulkey  delivered  the  opinion  of  the  Court : 

Robert  C.  Greer,  on  the  23rd  of  July,  1884,  commenced  an 

action  of  assumpsit  in  the  Superior  Court  of  Cook  county, 


Sec.  2]  Appeaeance.  117 

against  George  Young.  A  summons  in  the  usual  form, 
returnable  on  the  first  Monday  of  the  following  month,  was 
served  on  the  defendant,  and  due  return  thereof  made  by 
the  sheriff  of  Cook  county,  on  the  same  day.  On  the  4th 
of  August,  1884,  the  plaintiff  filed  in  the  cause  a  declara- 
tion in  the  usual  form,  containing  the  common  counts  only. 
On  the  18th  of  the  same  month,  the  defendant  filed,  by  his 
attorneys  a  special  appearance  in  the  case,  "for  the  pur- 
pose, only,  of  moving  to  quash  the  writ  of  summons,  and 
dismiss  the  suit."  On  the  19th  of  the  same  month  the  de- 
fendant filed  a  written  motion  in  the  cause,  "to  quash  the 
service  of  the  writ  of  summons,"  for  the  reason,  as  is  al- 
leged in  the  motion,  "that  the  defendant  is  a  non-resident 
of  the  State  of  Illinois,  and  at  the  time  of  said  service  was 
within  the  jurisdiction  of  this  court  for  the  purpose  of  at- 
tending legal  proceedings,  and  for  no  other  purpose."  This 
motion  was  supported  by  an  affidavit  of  the  defendant, 
showing,  in  substance,  that  both  the  plaintiff  and  the  de- 
fendant were  residents  of  Missouri;  that  the  plaintiff, 
prior  to  the  commencement  of  the  present  suit,  had  brought 
an  action  against  the  defendant,  in  the  circuit  court  of 
Lafayette  county,  in  the  State  of  Missouri,  "for  the  identi- 
cal cause  of  action  for  which  this  suit  is  brought,"  and 
that  said  former  suit  was  still  pending  and  undetermined 
in  the  State  of  Missouri;  that  in  defending  said  last  men- 
tioned suit,  it  became  necessary  to  take  depositions  in  Chi- 
cago, and  that,  under  the  instructions  of  his  attorneys,  he 
went  to  Chicago  for  the  sole  purpose  of  assisting  his  said 
attorneys  in  taking  said  depositions;  that  shortly  after 
the  taking  of  the  same,  and  while  in  the  office  of  his  at- 
torneys, consulting  with  them  as  to  the  probable  effect  of 
the  depositions,  the  sheriff  made  service  of  the  summons 
upon  him  in  the  present  case. 

Upon  consideration  of  the  facts  set  forth  in  the  affidavit, 
the  Superior  Court  sustained  the  motion  to  quash  the  ser- 
vice, and  entered  an  order  dismissing  the  suit,  which  was 
affirmed  by  the  Appellate  Court  for  the  First  District.  The 
case  is  brought  here  by  plaintiff  in  error  on  a  certificate 
of  the  Appellate  Court,  and  a  reversal  of  the  judgment 
of  affirmance  is  asked  on  a  number  of  grounds. 

It  is  first  contended,  that  as  the  defence  was  of  a  dilatory 
character,  it  should  have  been  made  at  the  verv  earliest 


118  Trial  Peactice  [Chap.  3 

opportunity,  which  it  is  claimed  was  not  done.  Of  the  cor- 
rectness of  the  rule  of  law  suggested  there  can  be  no  ques- 
tion; but  whether  the  motion  was  made  at  the  earliest  op- 
portunity, is  a  question  of  fact,  that  may  be  materially 
affected  by  the  rules  of  the  court  where  the  action  was 
pending,  of  which  this  court  can  not  take  judicial  notice, 
and  as  all  presumptions  are  to  be  indulged  in  favor  of  the 
correctness  of  the  rulings  of  that  court,  in  the  absence  of 
anything  to  the  contrary,  we  are  not  fully  prepared  to  say 
that  the  motion  was  not  made  in  time,  though  it  must  be 
confessed  the  objection  is  not  without  force.  However 
this  may  be,  we  prefer  to  place  our  decision  upon  other 
grounds. 

The  most  important  question  in  the  case,  is  whether  the 
circumstances  shown,  even  if  properly  pleaded  in  due  time, 
warranted  the  court  in  setting  aside  the  service  of  the  pro- 
cess and  dismissing  the  suit.  There  is  clearly  no  ground 
for  the  claim  that  the  plaintiff  or  his  counsel  had  any 
agency  in  inducing  the  defendant  to  leave  Missouri  and  go 
to  Chicago,  for  the  purpose  of  having  process  served  on 
him  in  the  latter  place, — in  other  words,  it  is  not  claimed, 
nor  is  there  any  ground  for  the  claim,  that  service  of  pro- 
cess upon  the  defendant  was  obtained  by  any  artifice, 
trick,  or  fraud,  on  the  part  of  the  plaintiff,  his  counsel,  or 
any  one  else  acting  in  his  interest.  The  question  then 
arises,  can  one  who  voluntarily  leaves  his  own  State,  and 
comes  to  this,  for  the  purpose  of  taking  depositions  before 
a  notary,  be  lawfully  served,  by  reading,  with  civil  process, 
while  here  on  such  business? 

The  fact  that  the  plaintiff  had  sued  the  defendant  in  Mis- 
souri, on  the  same  cause  of  action,  we  do  not  regard  as  hav- 
ing any  bearing  on  the  question,  as  it  is  the  settled  law  in 
this  State,  tliat  the  pendency  of  a  suit  in  another  State  can 
not  be  pleaded  in  abatement  of  a  suit  brought  here  on  the 
same  cause  of  action.  {McJilton  v.  Love,  13  111.  486;  Allen 
V.  Watt,  69  id.  655.)  But  even  where  the  pendency  of  a  suit 
in  a  sister  State  can  be  made  available  as  a  defence  at  all 
it  must,  by  all  the  authorities,  be  formally  pleaded  in  abate- 
ment, which  was  not  done  here.  Tlie  riglit  of  the  plaintiff 
then,  to  sue  the  defendant  here,  was  the  same  as  that  of 
any  one  else  having  a  claim  against  him.  The  ruling  of 
the  court,  therefore,  must  be  rested  entirely  upon  the  privi- 


Sec.  2]  Appeaeance.  119 

lege  or  immunity  which  the  common  law  has,  from  a  very 
early  period,  extended  to  parties  and  witnesses  in  a  lawsuit 
while  attending  court,  including  going  and  coming.  This 
rule  is  found  in  all  the  text  books,  and,  in  most  of  the  cases 
we  have  examined,  is  expressly  limited  to  cases  of  arrest 
on  civil  process.  1  Tidd,  (1st  Am.  ed.)  174;  3  Blackstone, 
side  page  289;  1  Greenleaf  on  Evidence,  sees.  316,  317;  2 
Bouvier's  Law  Die.  284. 

The  rule  as  laid  down  in  the  above  works,  is  fully  sus- 
tained by  an  almost  unbroken  current  of  authority,  as  is 
fully  shown  by  the  following  cases :  Meckius  v.  Smith,  1  H. 
Blac.  635;  Kinder  v.  Williams,  4  Term  Rep.  378;  Arding  v. 
Floiver,  8  id.  534;  Spence  v.  Bert,  3  East,  89;  Blore  v. 
Booth,  3  Ves.  350 ;  Ex  parte  Hawkins,  4  id.  691 ;  Ex  parte 
King,  7  id.  313 ;  Sidgier  v.  Birch,  9  id.  69 ;  Ex  parte  Jackson, 
15  id.  117. 

The  above  authorities  are  also  valuable  as  throwing  light 
upon  the  procedure  or  practice  in  cases  of  this  kind.  The 
arrest  of  a  party  to  a  suit,  by  civil  process,  being  regarded 
as  a  breach  of  the  defendant's  privilege,  the  usual  course 
was  to  appear  in  the  cause  in  which  the  arrest  was  made, 
and  procure  a  rule  against  the  plaintiff  and  his  attorney  to 
show  cause  why  the  defendant  should  not  be  discharged 
out  of  custody  by  reason  of  his  alleged  privilege,  upon  his 
filing  common  bail.  The  rule  to  show  cause  was  always 
supported  by  affidavit  setting  up  the  fact  of  the  arrest,  and 
attendant  circumstances.  On  the  hearing,  the  rule,  depend- 
ing upon  the  proofs,  was  either  made  absolute  or  dis- 
charged. If  the  former,  the  defendant,  upon  filing  common 
or  nominal  bail,  was  discharged,  and  if  he  had  given  special 
bail,  the  bail  bond  was  ordered  to  be  surrendered  and  can- 
celled. Nevertheless,  the  defendant  was  in  court,  and  was 
bound  to  answer  the  action. 

While,  as  we  have  just  seen,  the  exemption,  by  the  gen- 
eral current  of  authority,  applies  only  to  arrests,  yet  in 
some  of  the  States,  notably  New  York,  it  has  been  extended 
to  cases  of  service  by  summons,  merely,  particularly  where 
the  defendant  is  a  non-resident.  {Person  v.  Grier,  66  N  .Y. 
124;  Mathews  v.  Tufts,  87  id.  568.)  No  sufficient  reason  is 
perceived  for  departing  from  the  general  current  of  au- 
thority on  this  subject,  merely  because  some  two  or  throe 
of  the  States  have,  through  perhaps  a  spirit  of  comity,  more 


120  Teial  Peactice  [Chap.  3 

than  anything  else  seen  proper  to  do  so.  The  mere  service  of 
a  summons  upon  a  non-resident,  when  in  another  State  for 
the  purpose  of  taking  depositions  to  be  used  in  an  action 
to  which  he  is  a  party  in  his  own  State,  imposes  no  greater 
hardship  upon  him  than  to  be  served  with  process  out  of 
his  own  State  when  attending  to  any  other  kind  of  business. 
In  either  case,  he  is  usually  afforded  ample  time  to  prepare 
his  defence,  if  he  has  any.  Parties  thus  circumstanced 
have  no  difficulty  in  getting  a  temporary  postponement  or 
continuance  of  the  causes,  when  necessary  to  the  attain- 
ment of  justice,  or  to  avert  any  serious  loss  or  inconven- 
ience. It  is  clear  that  such  a  case  does  not  come  within  the 
reasons  of  the  rule  as  laid  down  in  the  authorities  above 
cited. 

But  outside  of  this  consideration,  it  is  essential  that  the 
party  invoking  the  protection  of  the  rule  should  come  pre- 
pared to  show  that  he  is  clearly  within  it.    The  rule,  as  well 
as  the  principle  on  which  it  is  founded,  is  thus  expressed 
by  Tidd,  supra:    "The  parties  to  a  suit,  and  their  witness- 
es, are,  for  the  sake  of  public  justice,  protected  from  arrest 
in  coming  to,  attending  upon  and  returning  from  the  court, 
— or,  as  it  is  usually  termed,   eundo  morando  et  redeundo." 
The  term  "court,"  within  the  meaning  of  the  rule,  has 
received  a  very  liberal  construction.     Greenleaf,  in  section 
317,  above  referred  to,  thus  summarizes  the  result  of  the 
authorities  on  this  subject:     "This  privilege  is  granted  in 
all  cases  where  the  attendance  of  the  party  or  witness  is 
given  in  any  matter  pending  before  a  lawful  tribunal  having 
jurisdiction  of  the  cause.    Thus,  it  has  been  extended  to  a 
party  attending  on  an  arbitration  under  a  rule  of  court; 
or  on  the  execution  of  a  writ  of  inquiry;  to  a  bankrupt  and 
witnesses  attending  before  the  commissioners,  on  notice; 
and  to  a  witness  attending  before  a  magistrate  to  give  his 
deposition,  under  an  order  of  court." 

To  the  last  instance,  given  by  the  author  may  be  added 
the  case  of  a  party,  or  his  witnesses,  appearing  before  a 
master  to  give  or  take  testimony,  which  would  fall  within 
the  same  principle.  Where  a  master,  magistrate  or  other 
person  takes  evidence  in  a  cause,  under  an  order  of  the 
court  wherein  the  cause  is  pending,  such  officer  or  other 
person  is  the  mere  instrument  of  the  court,  and  is  subject 
to  its  orders.     In  legal  effect,  such  evidence  is  taken  be- 


Sec.  2]  Appearance.  121 

fore  the  court.  But  a  notary  public,  when  taking  deposi- 
tions in  one  State  to  be  used  in  a  suit  pending  in  another, 
can  in  no  sense  be  regarded  as  an  instrument  or  agency  of 
the  court  wherein  such  suit  is  pending.  Neither  the  notary, 
nor  any  of  the  parties  appearing  before  him,  are  answer- 
able to  the  court  for  anything  said  or  done  while  there,  the 
vvhole  matter  being  outside  of  its  jurisdiction.  Not  so  with 
a  master,  magistrate  or  other  person  taking  evidence  under 
an  order  of  the  court  within  its  jurisdiction.  In  such  case, 
all  parties  appearing  before  him  for  such  purpose,  if  wil- 
fully guilty  of  any  improper  conduct,  might  summarily 
be  attached,  brought  before  the  court,  and  punished  as  for 
a  contempt  in  its  presence.  In  taking  the  depositions,  the 
notary  performed  purely  ministerial  functions.  He  could 
decide  no  questions  or  determine  any  matter  affecting  the 
rights  of  the  parties  to  the  suit,  nor  was  he,  as  we  have  just 
seen,  connected  with  any  court  or  other  tribunal  having 
the  power  to  do  so.  Hence  he  could  in  no  sense,  in  the  lan- 
guage of  Greenleaf,  be  said  to  have  ''jurisdiction  of  the 
cause,"  and  therefore  he  does  not  fall  within  the  category 
of  any  of  the  tribunals  contemplated  by  the  rule  in  ques- 
tion. 

Looking  at  the  action  of  the  trial  court  from  another 
point  of  view,  we  do  not  think  it  in  harmony  with  the  de- 
cisions of  this  court.  The  case  was  disposed  of  upon  a  sim- 
ple motion  to  quash  the  service.  The  writ,  the  service  and 
return,  as  they  appear  of  record,  were  in  strict  conformity 
with  law,  but  it  was  sought  to  assail  the  validity  of  the 
service  on  account  of  certain  matters  alleged  to  exist  dehors 
the  record,  and  set  forth  by  wa.y  of  affidavit.  This  we  do 
not  think  can  be  done.  Had  the  defendant  been  arrested, 
and  it  was  desired  to  raise  the  question  of  privilege  for  the 
purpose  of  obtaining  his  discharge,  then,  in  conformity  with 
the  well  settled  practice  in  such  cases,  a  rule  nisi  should  have 
been  taken  against  the  plaintiff,  as  heretofore  indicated,  and 
the  question  would  then  properly  have  been  heard  on  affi- 
davit, as  was  done  in  this  case.  But  no  such  case  as  the  one 
suggested  was  before  the  court.  There  was  simply  an  attack 
upon  the  service,  founded  upon  extrinsic  facts.  Whatever 
may  be  the  pi^ctice  in  States  where  the  code  system  pre- 
vails, it  is  clear  the  course  pursued  was  not  proper.  Here, 
the  common  law  practice  prevails  generally,  except  in  so  far 


122  Trial  Practice  [Chap,  o 

as  it  has  been  modified  by  legislative  enactment,  or  per- 
haps, in  some  instances,  by  long  and  uniform  custom;  but 
we  are  aware  of  no  change  in  the  practice,  by  legislation  or 
otherwise,  so  far  as  the  procedure  in  cases  of  this  kind  is 
concerned.  The  rule,  as  recognized  here  in  repeated  decis- 
ions, and  which  is  in  strict  accord  with  the  common  law 
practice,  is,  that  any  defect  in  the  writ,  its  service  or  re- 
turn, which  is  apparent  from  an  inspection  of  the  record, 
may  properly  be  taken  advantage  of  by  motion,  but  where 
the  objection  is  founded  upon  extrinsic  facts  the  matter 
must  be  pleaded  in  abatement,  so  that  an  issue  may  be 
made  thereon,  and  tried,  if  desired,  by  a  jury,  like  any 
other  issue  of  fact.  If  the  plaintiff  is  successful  upon  such 
issue,  the  judgment  is  quod  recuperet.  It  is  therefore  to 
him  a  valuable  right  to  have  the  issue  thus  made  up  and 
tried.  To  permit  the  defendant  to  try  an  issue  of  this  kind 
on  affidavit,  as  was  done,  gives  him  a  decided  advantage,  for 
if  he  fails,  his  motion  would  be  simply  overruled,  and  he 
would  still  have  a  right  to  a  trial  on  the  merits.  To  permit 
a  party  to  thus  speculate  on  the  chance  of  succeeding  on  a 
purely  technical  ground,  without  incurring  any  risk,  and 
without  any  compensation  to  the  plaintiff  in  case  of  failure, 
is  contrary  to  the  spirit  of  the  common  law,  and  is  in  direct 
conflict  with  the  decisions  of  this  court.  Holloivay  v.  Free- 
man, 22  111.  197 ;  McNah  v.  Bennett,  QQ  id.  157 ;  Union  Na- 
tional  Bank  v.  First  National  Bank,  90  id.  56;  Rubel  v. 
Beaver  Falls  Cutlery  Co.,  22  Fed.  Rep.  282 ;  Holton  v.  Daly, 
106  111.  131;  Hearsay  v.  Bradbury,  9  Mass.  96;  Bean  v. 
Parker,  17  id.  601;  Guild  v.  Richarson,  6  Pick.  368;  Char- 
lotte V.  Webb,  7  Vt.  48;  Lilkird  v.  Lillard,  5  B.  Mon.  340. 

For  the  reasons  stated,  the  judgments  of  the  courts  be- 
low are  reversed,  and  the  cause  remanded  to  the  Superior 
Court  of  Cook  county,  for  further  proceedings  in  conform- 
ity with  the  views  here  expressed. 

Judgment  reversed. 


Sec.  3]  Appearance.  123 

Section  3.     Waiver  of  Special  Appearance. 
NEOSHO  VALLEY  INVESTMENT  CO.  V.  CORNELL. 

Supreme  Court  of  Kansas.    1899, 

60  Kansas,  282. 

The  opinion  of  the  court  was  delivered  by  Smith,  J. : 
On  January  15,  1897,  judgment  was  rendered  in  the  dis- 
trict court  of  Bourbon  county  in  favor  of  plaintiffs  below, 
Carrie  A.  Cornell  and  others,  against  the  Neosho  Valley  In- 
vestment Company,  for  the  sum  of  $5665,  with  interest  at 
the  rate  of  ten  per  cent,  per  annum  and  costs,  declaring  the 
same  to  be  a  first  lien  upon  certain  real  estate  located  in 
said  county,  and  directing  foreclosure.  Upon  the  summons 
in  the  cause  was  indorsed  the  following  return: 

''Received  this  summons  May  17,  1896;  executed  it  by  de- 
livering to  the  Neosho  Valley  Investment  Company,  by  de- 
livering a  true  and  certified  copy  of  the  within  summons  to 
L.  M.  Bedell,  its  cashier  and  treasurer;  the  president  or 
other  chief  officer  not  found  in  mv  countv.    May  19,  1896. 

'M.  W.  Bennett, 
''Sheriff  Labette  County,  Kansas." 
The  judgment  was  rendered  by  default,  the  investment 
company  making  no  appearance.  On  April  19,  1897,  the 
investment  company  filed  its  petition  for  a  new  trial  of  the 
foreclosure  case,  under  section  606  of  chapter  95,  General 
Statutes  of  1897  (Gen.  Stat.  1889,  §4671),  wherein  it  at- 
tacked the  service  of  summons  in  the  cause,  and  alleged 
that  L.  M.  Bedell,  mentioned  in  the  return  of  the  sheriff, 
was  not  during  the  month  of  May,  1896,  nor  had  he  ever 
l)een,  the  cashier  of  the  company,  and  that  the  vice-presi- 
dent, secretary  and  treasurer  of  the  company,  during  the 
month  of  May,  1896,  had  resided  in  the  city  of  Chetopa,  in 
Labette  county,  Kansas. 

Coupled  with  this  attack  on  the  service  was  an  allegation 
in  the  petition  for  a  new  trial  in  substance  as  follows :  *  * 
that  the  judgment  was  taken  in  fraud  of  the  rights  of  the 
company.    *    *     *     * 

[Proceedings  under  this  petition  for  a  new  trial  were 
apparently  dropped,  and  when  the  sheriff  was  about  to  sell 


124  Trl\l  Peactice  [Chap.  3 

(he  land  upon  which  the  judgment  was  a  lien,  this  action 
was  commenced  by  a  petition  alleging  the  same  facts  as 
the  petition  for  a  new  trial,  an  injunction  being  prayed  for. 
Trial  was  had  and  judgment  went  against  the  company.]^ 

Our  view  of  this  case  renders  it  unnecessary  to  consider 
the  questions  raised  on  the  sufficiency  of  the  service  of  the 
summons.  That  question  has  been  put  past  our  considera- 
tion by  the  act  of  the  plaintiff  in  error.  In  the  petition 
for  a  new  trial  the  investment  company  was  not  content 
with  an  attack  upon  the  service  of  summons  only,  but  sought 
to  impeach  the  validity  of  the  judgment  on  other  grounds 
not  jurisdictional  in  character.  This  appeal  to  the  court 
for  relief  against  the  judgment,  for  reasons  other  than  that 
the  court  failed  to  obtain  jurisdiction  over  the  person  of 
the  party  defendant,  involved  the  admission  that  the  judg- 
ment was  valid,  and  the  plaintiff  in  error  by  this  act  treated 
it  as  such.  In  one  paragraph  of  the  petition  for  a  new 
trial  it  is  alleged  that  the  court  was  without  jurisdiction  by 
reason  of  a  fatal  defect  in  the  service.  In  another  para- 
graph the  judgment  is  attacked  on  the  ground  that  there 
was  no  consider.ation  for  the  note  sued  on,  etc. 

In  Adolph  Cohen  v.  C.  B.  Trowbridge,  6  Kan.  385,  it  is 
held  that  the  filing  of  a  motion  to  set  aside  a  judgment, 
based  partly  on  lack  of  jurisdiction  and  partly  on  error  in 
the  judgment  itself,  is  a  general  appearance.  (2  Encycl. 
PI.  &  Pr.  632).  Where  a  party  voluntarily  appears  in  court 
it  is  unnecessary  to  inquire  what,  if  any,  process  has  been 
served  upon  him.  {Carr  v.  Catlin,  13  Kan.  393.)  In  Meix- 
ell  V.  Kirkpatrick,  29  Kan.  679,  a  party  filed  a  demurrer  to 
the  petition  upon  several  grounds,  some  jurisdictional  and 
some  not,  claiming  that  the  court  had  no  jurisdiction  of  the 
person  of  tlie  defendant,  that  the  petition  did  not  state  facts 
constituting  any  cause  of  action,  and  that  several  causes 
of  action  were  improperly  joined.  This  demurrer  was  sus- 
tained on  the  ground  that  several  causes  of  action  were  im- 
])roperly  joined.  Justice  Brewer,  speaking  for  the  court, 
said : 

"When  served  with  the  summons  he  (the  defendant)  ap- 
peared and  filed  a  demurrer,  which,  while  it  alleged  a  lack 
of  jurisdiction,  presented  also  a  number  of  other  defenses, 
and  defenses  on  the  merits.    Such  plea,  by  the  prior  adju 

iMatter  within  brackets  is  a  condensation  by  the  editor. 


Sec.  3]  Appeaeance.  125 

dications  of  this  court,  was  equivalent  to  an  appearance.  A 
party  who  denies  the  jurisdiction  of  a  court  over  his  person 
must  first  present  this  single  question.  He  may  not  min- 
gle with  his  plea  to  the  jurisdiction  other  pleas  which  con- 
cede jurisdiction,  and  thereafter  insist  that  there  was  error 
in  overruling  his  plea  to  the  jurisdiction.  As  heretofore 
stated,  the  defendant  by  his  demurrer  raised  a  number  of 
questions  other  than  those  which  were  jurisdictional,  and 
invoked  the  judgment  of  the  court  thereon.  By  such  other 
]ileas  he  submitted  himself  and  his  rights  to  the  jurisdic- 
tion of  the  court,  and  can  no  longer  be  heard  to  say  that 
it  had  no  jurisdiction." 

The  plaintiff  in  error  earnestly  contends  that  this  peti- 
tion for  a  new  trial,  being  filed  after  judgment,  cannot  be 
construed  into  an  entry  of  appearance  in  the  cause,  for  the 
reason  that  the  judgment  was  originally  based  upon  void 
service  and  was  wholly  inoperative  to  affect  any  rights  or 
]3roperty  of  the  defendant  below.  This  contention  cannot 
be  sustained  under  the  authorities.  The  case  of  Life  Asso- 
ciation V.  Lemke,  40  Kan.  142,  19  Pac.  337,  is  substantially 
similar  in  its  facts  to  the  case  at  bar.  There,  after  judg- 
ment, defendant  filed  a  motion  on  jurisdictional  and  non- 
jurisdictional  grounds  to  set  the  judgment  aside,  and  it  was 
held  that  he  entered  a  general  appearance  to  the  action. 

The  latest  expression  of  this  court  is  found  in  Frazier  v. 
Douglass,  57  Kan.  809,  48  Pac.  36.  Douglass  was  served 
with  a  summons,  which  he  alleged  to  be  void,  and  moved 
the  court  so  to  rule.  Coupled  with  this  motion  was  a  sworn 
statement,  in  which  he  alleged  ''that  he  is  the  owner  in 
fee,  and  has  the  valid  title  to  the  land  described  in  the  said 
plaintiff's  petition  filed  in  said  cause,  and  is  in  the  peace- 
able and  rightful  possession  of  the  same,  and  that  said 
plaintiff  has  no  right  or  title  thereto  or  to  its  possession ; 
and  further  says  that  the  said  land  is  of  great  value,  to- 
wit,  of  the  value  of  $3000."  In  the  opinion  in  that  case  it 
is  stated: 

"As  will  be  readily  seen,  the  plaintiff  [defendant]  sets  up 
matters  which  were  non-jurisdictional  and  had  no  bearing 
upon  the  motion  he  had  made.  ^Vliere  a  defendant  alleges 
and  submits  to  the  court  matters  that  are  non-jurisdictional 
he  recognizes  the  general  jurisdiction  of  the  court  and 
waives   all  irregularities  which  may  have  intervened  in 


126  Tkial  Peactice  [Chap.  :' 

bringing  him  into  court.  Whatever  may  have  been  the  pur- 
pose of  the  defendant  in  alleging  these  matters,  it  is  clear 
that  they  do  not  relate  to  the  question  of  service  or  of  juris- 
diction. Although  not  entirely  formal,  the  averments  relate 
to  the  merits  of  the  controversy,  and  amount  to  a  complete 
answer  to  the  allegations  of  the  petition.  When  the  defend- 
ant set  up  matters  and  submitted  questions  which  were  not 
jurisdictional,  he  submitted  himself  and  his  rights  to  the 
jurisdiction  of  the  court,  and  he  cannot  be  heard  to  say 
that  it  had  no  jurisdiction." 

For  the  reasons  above  stated,  the  judgment  of  the  district 
court  will  be  affirmed. 


LOUISVILLE  HOME  TELEPHONE  CO.  V.  BEELER'S 

ADM'X. 

Court  of  Appeals  of  Kentucky.    1907, 

125  Kentucky,  366. 

Opinion  of  the  Court  by  Special  Judge  Clay — Reversing. 

This  action  was  instituted  by  Maggie  Beeler,  administra- 
trix of  her  deceased  husband,  E.  C.  Beeler,  against  the 
Cumberland  Telephone  &  Telegraph  Company  and  the 
Louisville  Home  Telephone  Company,  to  recover  damages 
for  the  death  of  her  husband,  which  occurred  in  Louisville, 
Jefferson  county,  Ky.,  and  which  is  alleged  to  have  re- 
sulted from  the  joint  negligence  of  the  two  companies.  In 
addition  to  the  allegations  of  negligence,  the  petition  states 
that  decedent  was  a  resident  of  Bullitt  county,  and  that 
each  of  the  defendants  was  a  common  carrier,  and  passed 
into  Bullitt  county.  Summons  was  served  upon  the  Home 
Telephone  Company  by  delivering  a  true  copy  thereof  to 
its  president,  and  also  by  delivering  copies  to  parties  who 
were  stated  in  the  return  to  be  agents  of  said  company,  re- 
siding in  Bullitt  county.  *  *  *  Xhe  defendant  Louisville 
Home  Teleplione  Company  filed  an  answer  in  three  para- 
graphs. In  the  first  paragraph  defendant  raised  the  ques- 
tion of  jurisdiction  by  setting  forth  that  its  residence  was 
in  Jefferson   county,  that  it  did  not  have   any  office   or 


Sec.  3]  Appearance.  127 

agent  in  Bullitt  county,  and  that  it  did  not  pass  into  said 
county.  In  the  second  and  third  paragraphs  defendant, 
without  waiving  its  objection  to  the  jurisdiction  of  the 
court,  pleaded  to  the  merits  of  the  case.  *  *  * 

[The  Bullitt  Circuit  Court  held  that  the  plea  to  the  merits 
was  a  waiver  of  the  plea  to  the  jurisdiction ;  a  trial  was  had, 
and  verdict  and  judgment  were  rendered  against  the 
Home  Telephone  Company.  From  an  order  overruling  its 
motion  for  a  new  trial  the  Company  appeals.]^ 

At  the  outset  there  is  presented  for  our  consideration 
the  question,  did  the  Bullitt  circuit  court  have  jurisdiction 
of  the  appellant,  Louisville  Home  Telephone  Company? 
In  passing  upon  this  point,  we  should  first  discuss  the  ques- 
tion whether  or  not  appellant  entered  its  appearance  by  fil- 
ing its  answer  both  to  the  jurisdiction  and  to  the  mer- 
its.   *     *    * 

Among  the  cases  relied  upon  by  appellee  is  the  case  of 
City  of  Covington  v.  Limerick,  107  Ky.  680,  19  Ky.  Law 
Rep.  330,  39  S.  W.  836,  in  which  the  court,  after  holding 
that  the  circuit  court  undoubtedly  had  jurisdiction  over  the 
person  of  the  defendant,  added  the  following:  "But,  in 
addition  to  the  plea  of  jurisdiction,  the  answer  of  the  de- 
fendant goes  to  the  merits  of  the  controversy,  and  is  a 
waiver  of  any  objection  to  the  jurisdiction  over  the  person 
of  the  defendant.  This  is  the  common  law  doctrine,  and 
was  held  to  be  the  law  in  this  State  in  the  case  of  Baker 
v.  L.  £  N.  R.  R.  Co.,  4  Bush  623." 

In  the  case  of  Baker  v.  L.  &  N.  R.  R.  Co.,  4  Bush  623,  we 
find,  however,  that  the  defendant  first  answered  to  the 
merits  without  suggesting  any  objection  to  the  jurisdiction, 
and  trial  was  then  had,  resulting  in  a  verdict  which  was  set 
aside  and  a  new  trial  ordered.  Next  came  a  hung  jury. 
About  a  year  and  a  half  thereafter  the  defendant  at- 
tempted to  plead  to  the  jurisdiction  of  the  court.  The 
court  very  properly  held  that  its  appearance  had  been  en- 
tered long  before. 

In  the  case  of  Guenther  &  Bros.  v.  American  Steel  Hoop 
Company,  25  Ky.  Law  Rep.  795,  116  Ky.  419,  76  S.  W.  480, 
the  question  involved  was  the  construction  and  validity  of 
subsection  6  of  section  51  of  the  Code,  authorizing  service 
upon  the  agent  of  a  non-resident  doing  business  in  this 

iThe  matter  inclosed  in  brackets  has  been  condensed  by  the  editor. 


128  Trial  Practice  [Chap.  3 

State.  In  that  case  the  motion  to  quash  the  process  was 
overruled.  The  defendant  did  not  follow  the  practice  adop- 
ted by  appellant  in  the  case  under  consideration.  He  did 
not  file  an  answer  as  provided  by  section  118  of  the  Civil 
Code;  but,  along  with  the  denial  of  other  facts,  simply  put 
in  issue  the  allegation  of  the  petition  that  he  was  a  non- 
resident of  the  State.  Under  the  circumstances  this  court 
Jield  that,  having  gone  into  the  merits  of  the  case  as  he  did 

by  his  answer,  he  had  entered  his  appearance  to  the  action. 

********** 

In  favor  of  the  view  that  a  defendant  who  files  an  answer 
to  the  jurisdiction,  and  in  the  same  answer,  without  waiving 
the  question  of  jurisdiction,  pleads  to  the  merits,  does  not 
thereby  enter  his  appearance,  we  find  the  following  cases: 

First,  the  case  of  Meguiar  v.  Rudy,  7  Bush  432,  in  which 
a  demurrer,  as  in  the  case  at  bar,  to  the  jurisdiction  of  the 
court  was  first  filed,  but  overruled  because  the  defect  did 
not  appear  on  the  face  of  the  petition.  The  defendant  then 
filed  an  answer  in  which  he  first  pleaded  to  the  jurisdiction 
of  the  court,  and  then  pleaded  to  the  merits,  including  a 
counterclaim.  The  circuit  court  tried  the  case  on  all  the 
issues  raised  and  came  to  the  conclusion  that  it  had  no 
jurisdiction  over  the  person  of  defendant.  Judgment  was 
then  entered  in  his  favor,  and,  upon  appeal  to  this  court, 
the  judgment  was  affirmed. 

Now,  in  the  case  under  consideration,  defense  could  not 
be  made  by  demurrer  to  the  jurisdiction  because  the  peti- 
tion stated  facts  sufficient  to  show  jurisdiction.  Nor  could 
defense  be  made  by  motion  to  quash  the  summons,  because, 
if  the  court  had  jurisdiction  at  all,  the  summons  had  been 
served  upon  the  proper  officer,  the  president  of  the  corpo- 
ration. Under  the  circumstances,  therefore,  the  only  kind 
of  a  defense  that  could  be  made  by  appellant,  Louisville 
Home  Telephone  Company,  was  by  answer.  This  method 
is  provided  for  by  section  118,  which  is  as  follows:  *'A 
party  may,  by  an  answer  or  other  proper  pleading,  make 
any  of  the  objections  mentioned  in  section  92,  the  existence 
of  which  is  not  shown  by  the  pleadings  of  his  adversary;  a 
faihue  so  to  do  is  a  waiver  of  any  of  said  objections  ex- 
cept that  to  the  jurisdiction  of  the  court  of  the  subject  of 
the  action."    An  answer  heing  the  only  kind  of  defensive 


Sec.  3]  Appeakance.  1^0 

pleading  that  could  be  filed,  the  question  arises,  what  sort 
of  an  answer  should  be  filed?  Should  a  party  be  required 
to  file  first  an  answer  to  the  jurisdiction,  and  afterwards  an 
answer  to  the  merits,  or  should  he  have  the  right  to  file 
■^'Oth  at  the  same  time?  There  is  certainly  no  authority  in 
the  Code  for  filing  one  answer  and  then  another  answer : 
any  answer  subsequent  to  the  original  answer  must  be  an 
amended  answer.  While  in  every  case,  no  doubt,  the  trial 
court  would  permit  an  answer  to  the  merits  to  be  filed  after 
an  answer  to  the  jurisdiction  had  been  passed  upon,  yet 
the  right  to  file  an  amended  answer  has  always  been  held  to 
be  a  matter  within  the  sound  discretion  of  the  court.  That 
being  the  case,  would  it  not  be  the  better  practice  to  join 
all  defenses  in  the  same  answer?  There  is  certainly  noth- 
ing in  section  118  to  the  contrary.  All  that  that  section 
requires  is  that  the  party  shall  not  answer  to  the  merits 
without  first  making  objection  to  the  jurisdiction  of  the 
court.  This  view  is  not  without  authority  to  sustain  it. 
Maxwell  on  Code  Pleading,  p.  394,  speaks  as  follews:  "At- 
common  law  pleas  must  be  pleaded  in  their  order;  that  is, 
dilatory  pleas  must  be  made  and  disposed  of  before  a  plea 
in  bar  could  be  determined.  Under  the  code,  however,  all 
the  defenses  which  a  defendant  may  have  are  to  be  pleaded 
at  one  time,  and  in  one  answer.    Therefore,  matter  in  abate 

ment  may  be  joined  with  a  plea  to  the  merits." 

********** 

The  New  York  court  of  appeals  has  taken  the  same  view. 
In  Siveet  v.  Tuttle,  14  N.  Y.  465,  we  have  the  following: 
''The  first  question  is  whether  a  defendant  along  with  other 
defenses  may  set  up  in  his  answer  the  non-joinder  of  other 
parties  who  ought  to  have  been  sued  with  him.  Under  the 
former  practice  the  non-joinder  of  defendants  could  be 
pleaded  only  in  abatement,  and  could  not  be  joined  with  a 
plea  in  bar;  but,  under  the  Code,  there  is  no  classification 
of  answers  or  defenses  corresponding  with  the  distinction 
between  pleas  in  abatement  and  in  bar.  The  distinction 
is  entirely  gone,  with  the  system  to  which  it  belongs.  The 
defendant  now  answers  but  once,  and  he  ma}^  set  forth  as 
manv  defenses  as  he  thinks  he  has,  but  must  state  them 
separately*  *  *  *  *  " 

And  in  the  case  of  Little  v.  Harrington,  71  Mo.  390,  we 

T.  P— ^  ' 


130  Trial  Practice  [Chap.  3 

find  the  following:  ''It  is  evident  from  these  statutory  pro- 
visions that  only  one  answer  is  contemplated,  and  this  to 
contain  whatever  defense  or  defenses  the  defendant  may 
have,  thus  dispensing  with  the  common  law  rule  that  a 
plea  in  bar  waives  all  dilatory  pleas  or  pleas  not  going  to 
the  merits." 

And  the  same  court,  in  the  case  of  Johnson  v.  Detrick, 
152  Mo.  243,  53  S.  W.  891,  says:  "A  plea  to  the  jurisdic- 
tion, even  when  coupled  with  a  plea  to  the  merits,  is  permis- 
sible under  our  Code;  and  the  latter  plea  does  not,  as  at 
common  law,  waive  the  former." 

In  view  of  the  foregoing  authorities,  *  *  we  have  reached 
the  conclusion  that  a  defendant  may  in  one  answer  plead 
both  to  the  jurisdiction  and  to  the  merits.  It  necessarily 
follows  that  a  plea  to  the  merits  that  recites  that  the  de- 
fendant does  not  waive  his  objection  to  the  jurisdiction  of 
the  court  is  not  a  waiver  of  the  plea  of  the  jurisdiction. 
We,  therefore,  hold  that  appellant's  answer  did  not  enter 
its  appearance  to  this  action.  *  *  * 

Judgment  reversed,  and  cause  remanded  for  a  new  trial 
consistent  with  this  opinion. 


LINTON  V.  HEYE. 

Supreme  Court  of  Nebraska,  1903. 

69  Nebraska,  450. 

Albert,  C.  This  is  an  action  to  quiet  the  title  to  several 
tracts  of  land,  each  plaintiff  asserting  title  to  a  separate 
tract.  *  *  *  Service  on  the  defendants  was  had  by  publica- 
tion. They  appeared  specially  and  objected  to  the  jurisdic- 
tion of  the  court  over  their  persons,  on  the  grounds  that  the 
affidavit  for  service  by  publication  and  the  notice,  published 
in  pursuance  thereof,  were  defective  in  certain  particulars, 
and  that  such  notice  was  not  published  for  the  period  re- 
quired by  law.  The  objections  were  overruled,  and  the  de- 
fendants answered. 

[In  their  answer  defendants  again  objected  to  the  juris- 


Sec.  3]  Trial  Practice  131 

diction  of  the  court,  and  also  pleaded  a  counterclaim.]^ 

*  *  *  A  trial  to  the  court  resulted  in  a  finding  and  decree 
for  the  plaintiffs.    The  defendants  prosecute  error. 

It  is  first  urged  that  the  court  had  no  jurisdiction  over 
the  defendants.  The  general  rule,  settled  by  a  long  line 
of  authorities,  is,  that  if  a  defendant  intends  to  rely  on  a 
want  of  jurisdiction  over  his  person,  he  must  appear,  if 
at  all,  for  the  sole  purpose  of  objecting  to  the  jurisdiction 
of  the  court.  If  he  appear  for  another  purpose,  such  ap- 
pearance is  general,  and  a  waiver  of  all  defects  in  the  orig- 
inal process,  and  an  acknowledgment  of  the  complete  juris- 
diction of  the  court  in  the  action.  Bankers  Life  Ins.  Co.  v. 
Bobbins,  59  Neb.  170 ;  Omaha  Loan  &  Trust  Co.  v.  Knight, 
50  Neb.  342;  Leake  v.  Gallogly,  34  Neb.  857;  South  Omaha 
Nat.  Bank  v.  Fanners  S  Merchants  Nat.  Bank,  4:5  Neb.  29; 
Dryfus  v.  Moline,  Milburn  &  Stoddard  Co.,  43  Neb.  233; 
Hurlburt  v.  Palmer,  39  Neb.  158,  173.  An  exception  to  this 
rule  is,  that,,  where  the  lack  of  jurisdiction  does  not  appear 
on  the  face  of  the  record,  the  defendant  may  unite  a  plea 
to  the  jurisdiction  with  his  other  defenses  to  the  action, 
without  waiving  his  rights  to  insist  on  the  lack  of  jurisdic- 
tion of  the  court.  Hurlburt  v.  Palmer,  supra.  But,  we  think, 
such  exception  must  be  limited  to  cases  where  the  plea  to 
the  jurisdiction  is  joined  only  with  such  defenses  as  go  to 
defeat  a  recovery  by  the  plaintiff,  and  should  not  be  ex- 
tended to  cases  where,  as  in  this  case,  such  plea  is  joined 
with  a  cross  petition,  or  counter-claim,  which  necessitates 
1  trial  on  the  merits  of  the  issues  tendered  by  the  peti- 
tion. Such  pleading,  though  denominated  an  answer,  con- 
tains all  the  essential  elements  of  a  petition  or  complaint, 
and  might  be  made  the  basis  of  an  independent  action  and 
decree  against  the  plaintiffs.  It  puts  it  beyond  the  lawful 
power  of  the  court  to  dispose  of  the  case,  by  a  finding  on 
t!ie  issues  tendered  by  the  plea  to  the  jurisdiction,  and 
compels  an  adjudication  on  the  merits.  The  defendants, 
having  thus  compelled  an  adjudication  on  the  merits,  can 
not  now  be  heard  to  question  the  authority  of  the  court 

whose  jurisdiction  they  thus  invoked. 

********** 

By  the  Court:  For  the  reasons  stated  in  the  foregoing 

iThe  portion  in  brackets  has  been  condensed  by  the  editor. 


132  Trial  Practice  [Chap.  3 

opinion,  tlie  decree  of  the  district  court  is  affirmed.^ 

lOn  appeal  to  the  Supreme  Court  of  the  United  States,  this  case  was 
aflBrmed.  Linton  v.  Heye,  194  U.  S.  628.  The  same  rule  was  announced  by 
the  Supreme  Court  of  the  United  States  in  Merchants'  Heat  and  Light  Co. 
V.  J.  B.  Clow  &  Sons,  (1906)  204  U.  S.  286,  where  defendant  filed  a  plea  of 
set-off,  under  the  Illinois  practice,  after  saving  an  exception  to  an  order  over- 
ruling its  special  appearance,  though  it  was  conceded  that  a  purely  defensive 
plea  would  not  have  waived  defendant 's  right  to  rely  upon  its  objection  to  the 
jurisdiction  of  the  court  over  its  person. 


WABASH  WESTERN  RAILWAY  V.  BROW. 

Supreme  Court  of  the  United  States.    1896. 

164  United  States,  271. 

Joseph  Brow  commenced  suit  in  the  Circuit  Court  of 
Wayne  County,  Michigan,  against  the  Wabash  Western 
Railway  to  recover  the  sum  of  twenty  thousand  dollars  for 
personal  injuries,  caused,  as  he  alleged,  by  defendant's 
negligence,  by  the  service,  September  24,  1892,  of  a  declara- 
tion and  notice  to  appear  and  plead  within  twenty  days, 
on  Fred  J.  Hill,  as  agent  of  the  company,  which  declaration 
and  notice  were  subsequently  filed  in  that  court.  On  the 
7th  of  October  defendant  filed  its  petition  and  bond  for 
removal  in  that  court,  and  an  order  accepting  said  bond 
and  removing  the  cause  to  the  Circuit  court  of  the  United 
States  for  the  Eastern  District  of  Michigan,  and  directing 

the  transmission  of  a  transcript  of  record,  was  entered. 

********** 

The  record  having  been  filed  in  the  Circuit  Court  of  the 
United  States  for  the  Eastern  District  of  Michigan,  a  mo- 
tion to  set  aside  the  declaration  and  rule  to  plead  was  made 
in  the  cause  in  these  words  and  figures:  ''And  now  comes 
Mie  Wabash  Western  Railway,  defendant  (appearing  spec- 
ially for  the  purpose  of  this  motion),  and  moves  the  court, 
upon  the  files  and  records  of  the  court  in  this  cause,  and 
upon  the  affidavit  of  Fred  J.  Hill,  filed  and  served  with  this 
motion,  to  set  aside  the  service  of  the  declaration  and  rule 
to  plead  in  this  cause,  and  to  dismiss  the  same  for  want  of 
•in-is(li(*tion  of  the  person  of  the  defendant  in  the  state 
court  from  which  this   cause  was   removed,   and  in  this 


Sec.  3]  Appearance  133 

court."  The  affidavit  was  to  the  effect  that  Hill,  on  Septem- 
ber 24,  1892,  was  the  freight  agent  of  "the  Wabash  Rail- 
road Company,  a  corporation  wliich  owns  and  operates  a 
railroad  from  Detroit  to  the  Michigan  state  line,  and  was 
not  an  agent  of  the  Wabash  Western  Railway,  defendant 
in  this  suit;"  ***** 

Mr.  Chief  Justice  Fuller,  after  stating  the  case,  deliv- 
ered the  opinion  of  the  court. 

This  was  not  a  proceeding  in  rem  or  quasi  in  rem,  but 
a  personal  action  brought  in  the  Circuit  Court  of  Wayne 
county,  Michigan,  against  a  corporation  wliich  was  neither 
incorporated  nor  did  business,  nor  had  any  agent  or  prop- 
erty, within  the  state  of  Michigan;  and  service  of  declara- 
tion and  rule  to  plead  was  made  on  an  individual  who  was 
not,  in  any  respect,  an  officer  or  agent  of  the  corporation. 
The  state  court,  therefor,  acquired  no  jurisdiction  over  the 
person  of  the  defendant  by  the  service.  Did  the  applica- 
tion for  removal  amount  to  such  an  appearance  as  con- 
ceded jurisdiction  over  the  person? 

We  have  already  decided  that  when  in  a  petition  for 
removal  it  is  expresed  that  the  defendant  appears  specially 
and  for  the  sole  purpose  of  presenting  the  petition,  the  ap- 
plication cannot  be  treated  as  submitting  the  defendant  to 
the  jurisdiction  of  the  state  court  for  any  other  purpose. 
Goldey  v.  Morning  News,  156  U.  S.  518. 

The  question  "how  far  a  petition  for  removal,  in  general 
terms,  without  specifying  and  restricting  the  purpose  of 
the  defendant's  appearance  in  the  state  court,  might  be 
considered,  like  a  general  appearance,  as  a  waiver  of  any 
objection  to  the  jurisdiction  of  the  court  over  the  person 
of  the  defendant,"  was  not  required  to  be  determined,  and 
was,  therefor,  reserved ;  but  we  think  that  the  line  of  rea- 
soning in  that  case  and  in  the  preceding  case  of  Martin  v. 
Baltimore  &  Ohio  Railroad,  151  U.  S.  673,  compels  the 
same  conclusion  on  the  question  as  presented  in  the  case 
before  us. 

In  Goldey  v.  Morning  Neics,  Mr.  Justice  Gray,  speaking 
for  the  court,  observed:  "The  theory  that  a  defendant,  by 
filing  in  the  state  court  a  petition  for  removal  into  the  Cir- 
cuit Court  of  the  United  States,  necessarily  waives  the 
riorht  to  insist  that  for  anv  reason  the  state  court  had  not 


134  Trial  Practice  [Chap.  3 

acquired  jurisdiction  of  his  person,  is  inconsistent  with  the 
terms,  as  well  as  with  the  spirit  of  the  existing  act  of  Con- 
gress regulating  removals  from  the  court  of  a  State  into 
the  Circuit  Court  of  the  United  States.  The  jurisdiction 
of  the  Circuit  Court  of  the  United  States  depends  upon  the 
acts  passed  by  Congress  pursuant  to  the  power  conferred 
upon  it  by  the  Constitution  of  the  United  States,  and  can- 
not be  enlarged  or  abridged  by  any  statute  of  a  State.  The 
legislature  or  the  judiciary  of  a  State  can  neither  defeat 
the  right  given  by  a  constitutional  act  of  congress  to  re- 
move a  case  from  a  court  of  the  State  into  the  Circuit 
Court  of  the  United  States,  nor  limit  the  effect  of  such  re- 
moval *  *  *  Although  the  suit  must  be  actually  pending 
in  the  state  court  before  it  can  be  removed,  its  removal 
into  the  Circuit  Court  of  the  United  States  does  not  admit 
that  it  was  rightfully  pending  in  the  state  court,  or  that 
the  defendant  could  have  been  compelled  to  answer  therein ; 
but  enables  the  defendant  to  avail  himself,  in  the  Circuit 
Court  of  the  United  States,  of  any  and  every  defense, 
duly  and  seasonably  reserved  and  pleaded,  to  the  action 
'in  the  same  manner  as  if  it  had  been  originally  commenced 
in  said  Circuit  Court.'  "  156  U.  S.  523,  525. 

Want  of  jurisdiction  over  the  person  is  one  of  these 
defenses,  and,  to  use  the  language  of  Judge  Drummond 
in  Atchison  v.  Morris,  11  Fed.  Rep.  582,  we  regard  it  as 
not  open  to  doubt  that  ''the  party  has  a  right  to  the  opin 
ion  of  the  Federal  court  on  every  question  that  may  arise 
in  the  case,  not  only  in  relation  to  the  pleadings  and  merits, 
but  to  the  service  of  process;  and  it  would  be  contrary  to 
the  manifest  intent  of  Congress  to  hold  that  a  party,  who 
has  the  right  to  remove  a  cause,  is  foreclosed  as  to  any 
question  which  the  Federal  court  can  be  called  upon,  under 
the  law,  to  decide." 

Moreover  the  petition  does  not  invoke  the  aid  of  the  court 
touching  relief  only  grantable  in  the  exercise  of  juris- 
diction of  the  person.  The  statute  imposes  the  duty  on 
the  state  court,  on  the  filing  of  the  petition  and  bond,  "to 
accept  such  petition  and  bond  and  proceed  no  further  in 
such  suit,"  and,  if  the  cause  be  removable,  an  order  of  the 
state  court  denying  the  application  is  ineffectual,  for  the 


Sec.  3]  Appeaeance  135 

petitioner  may,  notwithstanding,  file  a  copy  of  the  record 
in  the  Circuit  Court  and  that  court  must  proceed  in  the 

cause. 

********** 

It  is  conceded  that  if  defendant  had  stated  that  it  ap- 
peared specially  for  the  purpose  of  making  the  application, 
that  would  have  been  su;licient;  and  yet  when  the  purpose 
for  which  the  applicant  comes  into  the  state  court  is  the 
single  purpose  oi  removing  the  cause,  and  what  he  does  has 
no  relation  to  anything  else,  it  is  not  apparent  why  he 
should  be  called  in  to  repeat  that  this  is  his  sole  purpose; 
and  when  removal  is  had  before  any  step  is  taken  in  the 
case,  as  the  statute  provides  that  ' '  the  cause  shall  then  pro- 
ceed in  the  same  manner  as  if  it  had  been  originally  com- 
menced in  said  Circuit  Court,"  it  seems  to  us  that  it  cannot 
be  successfully  denied  that  e^ery  question  is  open  for  de- 
termination in  the  Circuit  Court,  as  we  have,  indeed,  al- 
ready decided. 

********** 

We  are  of  opinion  that  the  filing  of  a  petition  for  removal 
does  not  amount  to  a  general  appearance,  but  to  a  special 

appearance  only. 

********** 

Me.  Justice  Bbewer  and  Me.  Justice  Peckham  dis- 
sented. 


FISHER,  SONS  &  COMPANY  V.  CROWLEY. 

Supreme  Court  of  Appeals  of  West  Virginia.    1906. 
57  West  Virginia,  312. 

[Action  of  assumpsit.  The  defendants  moved  to  quash 
the  summons.  After  the  motion  was  overruled  a  plea  of  non- 
assumpsit  was  tendered.  Judgment  for  the  plaintiffs.  De- 
fendants assign  error.] ^ 

Poffenbarger,  J.  *  *  *  It  has  been  suggested  that,  by 
tendering  the  plea  of  non-assumpsit  after  the  motion  to 
quash  had  been  overruled  and  making  other  defenses,  the 
defendants  submitted  themselves  to  the  jurisdiction  of  the 

iThe  matter  in  brackets  has  been  condensed  hj  the  editor. 


136  Trial  Peactice  [Chap.  3 

court,  waiving  the  defect  in  the  writ.  *  *  *  No  decision  of 
this  court  holds  that  there  is  a  waiver  of  a  defect  in  a 
summons  by  proceeding  to  trial  after  an  adverse  ruling  on 
a  Emotion  to  quash  and  an  exception  taken  thereto.  Sears  v. 
Starhird,  78  Cal.  225,  and  Desmond  v.  Superior  Court,  59 
Cal.  274,  so  hold,  but  they  are  not  in  accord  with  the  more 
carefully  considered  cases  of  Lyman  v.  Milton,  44  Cal. 
630,  and  Deidesheimer  v.  Brown,  8  Cal.  339,  neither 
of  which  is  noticed  in  the  opinion  in  the  two  subse- 
quent inconsistent  cases.  Desmond  v.  Superior  Court 
went  up  from  a  justice  court  and  Sears  v.  Starhird  simply 
adopted  the  rule  without  comment.  In  view  of  this,  it  may 
be  fairly  said  they  are  not  well  considered  cases.  In  Michi- 
gan, Indiana,  Colorado,  Nebraska,  Florida  and  Missouri, 
it  has  been  held  that  defective  service  is  waived  by  going 
to  trial,  2  Ency.  PI.  &  Pr.  631  and  cases  cited,  but  the  au- 
thority for  the  decisions,  in  some  instances,  is  found  in  pe- 
culiar statutes,  and  most  of  the  cases  originated  in  justice's 
courts  where  practically  all  formalities  are  dispensed  with. 
Against  this  doctrine  of  waiver  in  cases  of  defective  ser- 
vice stand  the  decisions  of  many  states  and  the  high  author- 
ity of  the  Supreme  Court  of  the  United  States.  Harkness  v. 
Hyde,  98  U.  S.  476,  holds  that  ''Illegality  in  the  service  of 
process  by  which  jurisdiction  is  to  be  obtained  is  not  waived 
by  the  special  appearance  of  the  defendant  to  move  that 
the  service  be  set  aside;  nor  after  such  motion  is  denied, 
by  his  answering  to  the  merits.  Such  illegality  is  consid- 
ered as  wavied  only  when  he,  without  having  insisted  upon 
it,  pleads  in  the  first  instance  to  the  merits."  Mullen  v. 
Railroad  Co.,  (N.  C.)  19  S.  E.  106,  says:  ''Where  a  motion 
made  on  special  appearance  to  dismiss  for  want  of  service 
of  summons  is  overruled,  and  defendant  excepts,  his  sub- 
sequent appearance  to  the  merits,  waives  none  of  his 
rights."  Ames  v.  Windsor,  19  Pick  (Mass.)  247, 
says:  "So,  where  the  defendant,  upon  the  entry  of 
the  action  in  the  court  of  common  pleas,  moved  that 
court  to  dismiss  it,  on  the  ground  that  the  writ  was 
not  duly  served,  and  this  motion  was  overruled,  and 
the  defendant  thereupon  joined  in  the  common  de- 
murrer, and  the  action  was  thereupon  entered  in  this 
court,  it  was  held,  that  the  defendant  had  not  thereby 
waived  his  exception  to  the  legality  of  the  service."      To 


Sec.  3]  Appearance  137 

the  same  effect  are  State  v.  Dupre,  46  La.  Ann.  117,  and 
Railroad  Co.  v.  Heath,  87  Ky.  651.  Authorities  of  greater 
dignity  in  this  court,  however,  are  its  own  decisions  in 
Chapman  v.  Haitian d,  22  W.  Va.  329,  (Syl.  pt.  3),  Price  v. 

Finnell,  4  W.  Va.  296,  and  Steele  v.  Harkness,  9  W.  Va.  13. 

*  *  * 

That  pleading  to  the  merits,  without  previous  objection 
to  the  process  or  return,  is  a  waiver  of  process,  defects  in 
process,  defects  in  return,  defective  service  and  total  want 
of  service  is  in  no  sense  denied.  The  proposition  is  asserted 
by  a  vast  array  of  authorities.  See  2  Ency.  PI.  &  Pr.  646. 
It  is  ancient  law  in  this  state.  Tuherville  v.  Long,  3  H.  &  M. 
2>QQ;Winston  v.  Overseers,  4  Call.  357;  Harvey  v.  Skipivith, 
16  Grat.  410;  Mahamj  v.  Kephart,  15  W.  Va.  619;  Todd  & 
Smith  V.  Gates,  20  W.  Va.  604;  Bank  v.  Bank,  3  W.  Va.  386. 
But  the  principle,  as  sound  in  law  as  it  is  in  reason  and 
justice,  that  the  appearance,  to  have  such  effect,  must  be 
voluntary,  has  never  been  departed  from  except  in  the 
single  case  of  Railway  Co.  v.  Wright,  50  W.  Va.  653,  and 
that,  as  has  been  shown,  compelled  only  a  waiver  of  service, 
a  matter  of  less  consequence  than  the  requisites  of  a  valid 
summons.  A  man  may  waive  perfect  defenses  to  any  de- 
mand, however  large,  though  without  a  shadow  of  merit, 
by  a  mere  failure  to  appear  and  defend,  but,  by  any  law 
or  decision  which  would  prevent  his  appearance  or  cut  off 
his  opportunity  to  make  defense,  he  would  be  more  effect- 
ually robbed  of  his  money  than  if  it  were  taken  from  him 
by  a  highwayman.  It  must  be  voluntary  and  free  from 
constraint,  else  it  is  not  binding.  Nor  can  he  be  deprived 
of  any  other  legal  right  except  by  his  own  voluntary  act. 
He  has  a  perfect  right  to  remain  out  of  court  until  regu- 
larly and  legally  brought  in,  and,  if  an  attempt  is  made  to 
bring  him  in  irregularly,  he  has  a  perfect  right  to  object, 
on  the  ground  of  irregularity,  in  proper  time,  and  manner. 
To  force  him  to  waive  it,  by  saying,  if  he  does  not  do  so,  he 
can  make  no  defense  on  the  merits,  is  a  palpable  denial 
of  a  legal  right.  He  must  then  determine  whether  he  will 
risk  his  whole  case  on  the  question  of  insufficiency  of  the 
writ  or  return,  as  the  case  may  be,  however  full  and  com- 
plete he  might  be  able  to  make  his  defense  on  the  merits, 
or  waive  the  defect  and  submit  himself  to  a  jurisdiction 
not  lawfully  obtained,  in  order  to  prevent  his  being  forever 


138  Trial  Peactice  [Chap.  3 

deprived  of  bis  defense  in  case  his  objection  to  the  writ  or 
return  should  prove  to  be  not  tenable.  A  test  of  the  courts 
jurisdiction  could  never  be  made  except  at  great  peril,  a 
result  of  which  would  be  that  no  attempt  to  do  so  would 
ever  be  made  in  a  case  in  which  defense  on  the  merits  could 
be  made.  In  order  to  do  so  it  would  be  necessary  to  suffer 
a  judgment  by  default,  then  go  back  to  the  same  court  with 
a  motion  to  set  it  aside  for  insufficiency  of  process,  vainly 
ask  the  court  to  reverse  itself,  suffer  the  same  adverse  rul- 
ing, and  then,  if  possible,  obtain  a  writ  of  error  from  this 
Court  and  reverse  the  judgment  for  the  defect  in  process 
alone,  and,  on  failure  of  that,  to  be  forever  barred  of  any 
defense  on  the  merits.  For  the  court  to  present  to  a  party 
the  alternative  of  waiving  a  jurisdictional  defect  or  giving 
up  his  defense,  and  compel  him  to  choose,  is  not  to  allow 
a  voluntary  submission  to  its  jurisdiction,  but  to  coerce  such 
submission  or  a  relinquishment  of  the  defense  on  the  merits, 
however  ample  and  just  it  may  be,  and  give  to  the  plaintiff 
what  he  is  clearly  not  entitled  to — the  appearance  of  the 
defendant  without  process  or  relinquishment  of  defense  in 
that  action.  How  can  the  action  of  a  court,  in  arbitrarily 
taking  from  one  man  a  right,  trivial  and  unimportant 
though  it  be,  and  conferring  it  upon  another,  be  justified, 
either  legally  or  morally  I  Is  the  right  to  stay  out  of  court 
until  legally  brought  in  worth  nothing?  Is  process  a  mere 
idle  formality?  If  so,  whj^  allow  a  default  judgment  to  be 
set  aside  for  want  of  it?  That  this  will  be  done  all  admit, 
and,  in  admitting,  confess  that  the  acquisition  of  jurisdic- 
tion by  process  is  a  matter  of  substance  and  not  of  form. 
To  say  in  the  same  breath  that  a  man  may  not  test  it  with- 
out surrendering  his  defense  to  the  merits  is  squarely  and 
flatly  inconsistent,  contradictory  of  the  admitted  nature  of 
the  right,  and  violative  of  law  in  that  it  forcibly  deprives 
the  citizen  of  a  substantial  legal  right.  To  say  that  the 
office  of  process  is  to  bring  the  defendant  into  court  and 
that,  after  his  appearance,  it  is  wholly  unimportant  and 
may  be  disregarded,  falls  far  short  of  justifying  the  ruling. 
His  appearance  is  involuntary.  He  must  come  or  risk  every- 
thing on  the  question  of  insufficiency  of  the  process.  If  he 
does  not,  a  judgment  by  default  goes  against  him,  forever 
precluding  any  defense,  be  it  a  release,  payment,  fraud  or 
what  not,  unless  he  can  have  it  set  aside  for  the  defect  in 


Sec.  3]  Appeaeance  139 

the  process  or  some  other  error.  It  puts  him  under  com- 
pulsion from  the  moment  of  service.  The  court  has  laid 
its  powerful  hand  upon  him  and  will  render  judgment 
against  him  without  a  hearing  if  he  does  not  bring  to  its 
attention  the  defect  in  its  process  and  ask  to  be  discharged. 
For  the  court  to  say,  upon  such  compulsory  appearance  and 
protest  against  jurisdiction,  now  that  you  are  here,  you 
must  stay,  no  matter  how  you  were  dragged  in,  is  but  bit- 
ter mockery,  utterly  inconsistent  with  the  principles  of  the 
law,  eulogized  in  these  days  of  enlightenment  for  their 
justice  and  fairness  even  in  those  periods  in  which  society 
was  comparatively  crude  and  barbarous. 

To  test  the  sufficiency  of  the  summons,  the  appearance 
must  be  special,  of  course,  but  it  is  not  necessary  in  a  court 
of  record  to  make  the  order,  plea  or  motion  expressly  state 
that  the  appearance  is  only  for  the  purpose  of  excepting 
to  the  jurisdiction.  *  *  *  Groves  v.  County  Court,  42  W.  Va. 
587,  seems  to  impliedly  hold  that  if  the  record  show  that  a 
defendant  came  into  court  without  saying  he  came 
for  a  special  purpose,  his  ajDpearance  is  presumed  and 
taken  to  have  been  a  general  appearance,  but  the  record 
showed  that  the  case,  commenced  by  notice,  had  been  dock- 
eted and  the  cause  removed  to  another  court,  on  motion, 
after  appearance,  and  before  any  exception  to  the  notice 
was  taken.  Hence  the  record  showed  more  than  mere  pres- 
ence in  court.  Here  the  record  as  a  whole  negatives  any 
intent  to  voluntarily  submit  to  the  jurisdiction.  An  immedi- 
ate and  direct  attack  was  made  upon  the  writ,  and  an  ex- 
ception to  the  action  of  the  court  in  refusing  to  quash  it  put 
upon  the  record.  However  it  may  be  when  the  objection 
is  insufficiency  of  service,  and  defectiveness  of  the  sum- 
mons in  a  justice's  court,  the  uniform  holding  by  this  court 
has  been  that  where  the  writ  commencing  an  action  in  a 
court  of  record  is  excepted  to  before  any  plea  has  been 
tendered  or  continuance  had,  or  other  step  taken,  import- 
ing a  general  appearance,  the  defendant  is  deemed  not  to 
have  waived  or  lost  the  benefit  of  his  motion,  if  an  exception 
was  taken  and  saved,  although  he  afterward  plead  to  the 
merits  and  went  to  trial. 

For  the  foregoing  reasons,  the  judgment  must  be  re- 


140  Tkial  Practice  [Chap.  3 

^•el•sed,  the  summons  quashed   and  the  action  dismissed, 
with  costs  both  in  this  court  and  the  court  below. 

Reversed. 
Sanders,  Judge,  dissented  in  part. 


CORBETT  V.  PHYSICIANS'  CASUALTY 
ASSOCIATION. 

Supreme  Court  of  Wisconsin.    1908, 

135  Wisconsin,  505. 

Action  to  recover  on  an  accident  insurance  policy  issued 
on  the  mutual  assessment  plan.  *  *  *  The  answer  stated 
three  defenses,  as  follows,  in  effect:  (1)  The  defendant  is 
a  Nebraska  corporation  which  has  never  complied  with  the 
laws  of  this  state  authorizing  service  of  process  upon  it  by 
serving  ujDon  the  commissioner  of  insurance  and  the  only 
service  made  was  of  that  character;  (2)  without  waiving 
the  plea  to  the  jurisdiction  of  the  court  the  defendant  shows 
that  it  never  qualified  to  do  business  in  this  state  and,  there- 
fore, the  making  of  the  insurance  contract  was  prohibited 
by  sec.  1978,  Stats.  (1898),  and  is  not  enforceable  in  the 
courts  of  this  state;  (3)  without  waiving  any  right  under 
the  foregoing,  the  allegations  of  the  complaint  as  to  the 
assured  being  a  member  in  good  standing  of  the  association 
at  the  time  he  was  injured  are  denied.  *  *  * 

The  plea  to  the  jurisdiction  was  tried  first  and  over- 
ruled. Defendant  by  its  counsel  excepted  to  the  ruling.  No 
specific  objection  was  made  to  then  proceeding  to  a  trial 
upon  the  merits,  which  was  done.  *  *  * 

Judgment  was  rendered  in  favor  of  the  plaintiff,  from 
which  this  appeal  was  taken. 

Marshall,  J.  At  the  threshold  in  the  consideration  of 
this  case  is  presented  the  question  of  whether  a  defendant 
can  challenge  the  jurisdiction  of  the  court  in  which  he  is 
f'ited  to  appear,  upon  the  ground  that  the  summons  in  the 
action  was  not  efficiently  served,  and  failing  in  that  can 
submit  to  a  trial  upon  the  merits  and  in  case  of  an  adverse 


Sec.  3]  Appeabancb  141 

decision  can,  on  appeal,  have  the  benefit  of  the  objection 
made  at  the  start.  *  *  * 

As  we  view  the  case  we  need  not  follow  and  endeavor  to 
answer  counsel's  argument  in  detail  on  the  jurisdictional 
question,  because  it  is  firmly  settled  in  respondent's  favor 
by  numerous  decisions  of  this  court.  Loive  v.  Stringhmn, 
14  Wis.  222  ;  Grantier  v.  Rosecrance,  27  Wis  488 ;  Blackivood 
V.  Jones,  27  Wis.  498;  Anderson  v.  Cohurn,  27  Wis.  558; 3 
Ins.  Co.  of  N.  A.  V.  Swineford,  28  Wis.  257;  Alderson  v. 
White,  32  Wis.  308;  Dikeman  v.  Struck,  76  Wis.  332,  45 
N.  W.  118.  The  following  language  by  Dixon,  C.  J.,  in 
Alderson  v.  White,  supra,  referred  to  by  counsel  for  re- 
spondent, is  often  quoted  as  an  unmistakable  indication  of 
the  doctrine  prevailing  in  this  state : 

"The  party  seeking  to  take  advantage  of  want  of  juris- 
diction in  every  such  case,  must  object  on  that  ground 
alone,  and  keep  out  of  court  for  every  other  purpose.  If 
he  goes  in  for  any  purpose  incompatible  with  the  supposi- 
tion that  the  court  has  no  power  or  jurisdiction  on  account 
of  defective  service  of  process  upon  him,  he  goes  in  and 
submits  for  all  the  purposes  of  personal  jurisdiction  with 
respect  to  himself,  and  cannot  afterwards  be  heard  to  make 
the  objection.  It  is  a  general  appearance  on  his  part, 
equivalent  in  its  effect  to  proof  of  due  personal  service  of 
process." 

It  will  be  thus  seen  that  the  right  to  proceed  to  a  trial 
on  the  merits  after  a  decision  against  the  defendant  on  the 
jurisdictional  question,  efficiently  saving  an  objection  to 
the  ruling  in  that  regard,  is  not  recognized  as  having  any 
place  in  our  practice.  The  quoted  language  was  only  a 
reiteration,  in  effect,  of  what  was  said  in  Loive  v.  String- 
ham,  supra.  There  the  doctrine  which  has  from  the  start 
prevailed  here,  was  thus  plainly  stated  in  these  words: 

"We  think  it  is  also  a  waiver  of  such  a  defect  for  the 
party,  after  making  his  objection,  to  plead  and  go  to  trial 
on  the  merits.  To  allow  him  to  do  this,  would  be  to  give 
him  this  advantage.  After  objecting  that  he  was  not  prop- 
erly in  court,  he  could  go  in,  take  his  chance  of  a  trial  on 
the  merits,  and  if  it  resulted  in  his  favor,  insist  upon  the 
judgment  as  good  for  his  benefit,  but  if  it  resulted  against 
him,  he  could  set  it  all  aside  upon  the  ground  that  he  had 
never  been  properly  got  into  court  at  all.     If  a  party 


142  Trial  Practice  [Chap.  3 

wishes  to  insist  upon  the  objection  that  he  is  not  in  court, 
he  must  keep  out  for  all  purposes  except  to  make  that 
objection. ' ' 

We  recognize  that  there  are  very  respectable  authorities 
to  the  contrary  of  the  foregoing,  among  which  are  the  fol- 
lowing :  Harhness  v.  Hyde,  98  U.  S.  476 ;  Miner  v.  Francis, 
3  N.  D.  549,  58  N.  W.  343;  2  Ency.  PI.  &  Pr.  629,  630,  and 
note  1.  However,  it  is  believed  that  the  great  weight  of 
authority,  or  at  least  the  better  reasoning,  is  the  other  way. 
These  are  but  a  few  of  the  many  cases  that  might  be  cited 
in  support  of  that :  In  re  Clarke,  125  Cal.  388,  392,  58  Pac. 
22;  Manhard  v.  Scliott,  37  Mich.  234;  Stevens  v.  Harris,  99 
Mich.  230,  58  N.  W.  230 ;  Union  Pac.  R.  Co.  v.  De  Bush,  12 
Colo.  294,  20  Pac.  752 ;  Lord  v.  Hendrie  S  B.  Mfg.  Co.,  13 
Colo.  393,  22  Pac.  782 ;  Ruhtj  Chief  M.  S  M.  Co.  v.  Gurley, 
17  Colo.  199,  29  Pac.  668;  Stephens  v.  Bradley,  24  Fla.  201, 
3  South.  415 ;  Thayer  v.  Dove,  8  Blackf.  567 ;  Kronshi  v.  Mo. 
Pac.  R.  Co.,  77  Mo.  362. 

By  the  Court — The  judgment  is  affirmed. 


Section  4.     Withdrawal  of  Appearance. 
ELDRED  V.  BANK. 

Supreme  Court  of  the  United  States.    1873, 
17  Wallace,  545. 

Error  to  the  Circuit  Court  for  the  Eastern  District  of 
Wisconsin. 

*  *  *  The  Michigan  Insurance  Bank,  on  the  14th  of  Au- 
gust, 1861,  sued  Anson  Eldred,  Elisha  Eldred,  and  Uri 
Balcom,  trading  as  Eldreds  &  Balcom,  in  the  court  of 
Wayne  County,  Michigan,  as  indorsers  on  a  .promissory 
note  for  $4,000.  *  *  *  Publication-notice  under  the  laws  of 
Michigan  was  given.  *  *  *  The  defendant,  Anson  Eldred, 
filed  a  plea  of  non-assumpsit,  with  notice  of  set-off,  De- 
cember 27th,  1861,  and  demanded  a  trial. 

On  the  22nd  of  April,  1862,  as  the  record  of  the  case 


Sec.  4]  Appearance  143 

stated,  the  cause  came  on  to  be  heard,  and  the  plea  of  the 
defendants  theretofore  pleaded  by  them  was  withdrawn, 
and  the  default  of  Elislia  Eldred  and  Uri  Balcom  entered, 
and  on  the  10th  day  of  May  the  said  default  was  made  ab- 
solute.   On  the  13th  of  May,  the  record  continues : 

"The  plea  of  the  defendant,  Anson  Eldred,  heretofore 
pleaded  by  him,  having  been  withdrawn,  and  the  default 
of  the  defendants,  Elisha  Eldred  and  Uri  Balcom,  having 
been  duly  entered,  *  *  *  therefor,  it  is  considered  that  said 
plaintiffs  do  recover  against  said  defendants  their  damages 
aforesaid,  together  with  their  costs  aforesaid  to  be  taxed, 
and  that  said  plaintiff  have  execution  therefor." 

In  this  state  of  things  the  bank  brought  this,  the  present 
suit,  in  the  court  below,  on  the  same  note  against  the  same 
Anson  Eldred,  Elisha  Eldred,  and  Uri  Balcom.  *  *  *  Ansov 
Eldred,  who  alone  was  served  or  appeared,  pleaded  the 
general  issue;  and  the  case  came  on  for  trial.  *  *  *  The 
defendant  *  *  *  then  oft'ered  in  evidence  the  record  of  the 
above  mentioned  suit  on  the  same  note  in  the  Wayne 
County  Court : 

1st.  *  *  * 

2nd.     As  being  a  bar  to  recovery  on  this  note  in  suit. 

********** 

Judgment  having  gone  accordingly  for  the  bank,  Anson 
Eldred  brought  the  case  here  on  error;  the  error  assigned 
being  the  refusal  of  the  court  to  instruct  the  jury  that  the 

judgment  was  a  bar, 

******##** 

Mr.  Justice  Miller  delivered  the.  opinion  of  the  court. 

It  is  argued  by  the  counsel  of  the  defendant  in  error  that 
the  withdrawal  of  the  plea  of  Anson  Eldred  left  the  case 
as  to  him  as  though  he  had  never  filed  the  plea,  and  that 
never  having  been  served  with  process  he  was  not  liable  to 
the  personal  judgment  of  the  court. 

We  do  not  agree  to  this  proposition.  The  filing  of  the 
plea  was  both  an  appearance  and  a  defense.  The  case  stood 
for  the  time  between  one  term  and  another  with  an  appear- 
ance and  a  plea.  The  withdrawal  of  the  plea  could  not 
have  the  effect  of  withdrawing  the  appearance  of  the  de- 
fendant, and  requiring  the  plaintiff  to  take  steps  to  bring 
that  defendant  again  within  the  jurisdiction  of  the  court. 
Having  withdrawn  that  plea  he  was  in  a  condition  to  de- 


144  Trial  Pbactice  [Claap.  3 

mur,  to  move  to  dismiss  the  suit  if  any  reason  for  that 
could  be  found,  or  to  file  a  new  and  different  plea  if  he 
chose,  either  with  the  other  defendants  jointly,  or  for  him- 
self. He  was  not,  by  the  withdrawal  of  the  plea,  out  of 
court.  Such  a  doctrine  would  be  very  mischievous  in  cases 
where,  as  it  is  very  often,  the  first  and  only  evidence  of 
the  appearance  of  a  party  is  the  filing  of  his  plea,  answer, 
or  demurrer.  The  case  might  rest  on  this  for  a  long  period 
before  it  was  ready  for  trial,  when,  if  the  party  could  obtain 
leave  of  the  court  to  withdraw  his  plea  (a  leave  generally 
granted  without  objection),  he  could  thereby  withdraw  his 
appearance,  the  plaintiff  is  left  to  begin  de  novo. 

We  are  of  opinion  that  the  record  of  the  suit  in  Michigan 
shows  a  valid  personal  judgment  against  Anson  Eldred, 
and  that  that  judgment  was  a  bar  to  recovery  in  the  present 
suit. 

Judgment  reversed,  but  without  costs  to  either  party  in 
this  court,  and  a  new  trial  granted  in  the  Circuit  Court. 


INSUEANCE  TRUST  AND  AGENCY  V.  FAILING. 

Supreme  Court   of  Kansas.    1903, 
66  Ka7isas,  336. 
The  opinion  of  the  court  was  delivered  by  Johnston,  C. 

T    .    *    *     *     *     * 

On  April  3,  1900,  the  defendants  appeared  by  their  at- 
torney and  filed  separate  demurrers,  in  each  of  which  the 
following  grounds  were  stated: 

*'l.  That  the  court  had  no  jurisdiction  of  the  person  of 
the  defendant  or  the  subject  of  this  action. 

"2.  That  there  is  a  defect  of  parties  defendant. 

**3.  That  several  causes  of  action  are  improperly  joined 
and 

''4,  That  the  petition  does  not  state  facts  sufficient  to 
constitute  a  cause  of  action." 

On  June  29,  1900,  the  defendants,  without  notice  to  the 


Sec.  4]  Appearance  145 

plaintiff,  orally  asked  and  obtained  leave  to  withdraw  the 
demurrers  and  appearances  previously  filed.  *  *  * 

*  *  *  Was  jurisdiction  lost  by  the  attempted  withdrawal 
of  the  demurrers  and  appearances  several  months  after- 
ward? We  think  not.  The  code  (<^67;  Gen.  Stat.  1901, 
<^4497)  declares  that  "the  voluntary  appearance  of  a  de- 
fendant is  equivalent  to  service."  Will  it  be  contended 
that  a  defendant  served  with  summons,  who  has  tired  of 
the  litigation,  can  withdraw  from  the  case  and  the  juris- 
diction of  the  court  at  will?  Where  a  defendant  pleads 
and  makes  a  general  appearance,  he  waives  the  service 
of  summons  and  any  defect  that  there  may  be  in  the  pro- 
cess, and  is  in  court  as  fully  and  effectually  as  though  per- 
sonal service  had  been  made  on  him.  A  submission  to  the 
jurisdiction  of  the  court,  whether  coerced  by  process  or 
voluntary  as  in  this  case,  cannot  be  retracted  or  withdrawn 
to  the  prejudice  of  the  plaintiff.  To  allow  a  withdrawal 
which  would  divest  the  court  of  jurisdiction  obtained  by  a 
general  appearance  would  be  a  great  injustice  to  a  plaintiff 
who  had  relied  on  the  appearance  of  a  non-resident  defend- 
ant until  the  time  and  opportunities  to  obtain  service  other- 
wise had  passed.  The  court  may  permit  a  withdrawal,  or 
rather  set  aside  an  appearance  made  without  authority,  or 
procured  by  fraud,  but  under  a  code  provision  making  a 
general  appearance  co-equal  with  service,  the  court  has  no 
more  right  to  permit  a  withdrawal  of  such  appearance  con- 
ferring jurisdiction,  than  it  would  have  to  set  aside  service 
of  a  summons  regularly  made.  Here  there  was  no  claim  of 
fraud,  or  of  misapprehension,  as  the  appearance  was  made 
by  counsel  who  was  shown  to  have  full  authority  to  repre- 
sent the  defendants.    The  action  of  the  court  in  permitting 

a  withdrawal  of  appearance  was  unwarranted. 

********** 

Reversed. 


T.  p.— 10 


146  Trial  Practice  [Chap.  3 

Section  5.     Authority  of  Attorney  to  Appear. 
HAMILTON  V.  WRIGHT. 

Court  of  Appeals  of  New  York.    1868. 
37  Nerv  York,  502. 

This  was  an  action  of  ejectment,  brought  in  the  name 
of  the  appellants  [Hamilton  and  Livingston]  and  one  Glea- 
son,  to  recover  possession  of  certain  lands  in  the  town  of 
Shandaken,  Ulster  county.  *  *  *  Judgment  in  favor  of  the 
defendant  for  his  costs,  was  rendered  against  all  of  the 
jolaintiffs,  and  was  affirmed  on  appeal  to  the  General  Term. 

Hamilton  and  Livingston  moved  at  the  Poughkeepsie 
Special  Term  that  the  judgment  against  them  be  vacated, 
or,  in  case  Gleason  failed  to  pay  the  costs,  that  William 
Lounsbury,  plaintitfs'  attorney,  should  pay  the  judgment, 
upon  the  ground  that  the  use  of  their  names  as  plaintiffs 
was  unauthorized  and  unknown  to  them.  The  special  Term 
denied  the  motion  with  costs.  From  this  order  denying 
the  motion,  Hamilton  and  Livingston  appealed  to  the  Gen- 
eral Term,  where  the  order  was  modified,  directing  that 
the  judgment  be  in  the  first  instance  collected,  if  collecti- 
ble, of  W.  S.  Gleason,  their  co-plaintiff,  who  caused  the 
action  to  be  brought,  and  that  the  question  of  the  liability 
of  plaintiffs'  attorney  to  Hamilton  and  Livingston,  in 
case  they  are  to  pay  the  judgment,  be  left  open :  neither  of 
the  parties  to  have  costs,  as  against  the  other,  upon  such 
appeal.  From  this  last  order,  Plamilton  and  Livingston 
appealed  to  this  court. 

Woodruff,  J.  The  general  rule,  that  an  appearance  by 
attorney,  whether  for  the  plaintiff  or  the  defendant,  if 
there  be  no  collusion,  may  be  recognized  by  the  adverse 
party  as  authentic  and  valid,  I  deem  important  to  the  safe 
administration  of  justice,  and  well  founded  in  the  scheme 
and  plan  of  such  administration  in  England  and  this  coun- 
try ever  since  such  officers  were  commissioned  to  repre- 
sent litigants  in  the  courts. 

Receiving  their  authority  from  the  court,  they  are 
deemed  its  officers.  Their  commissions  declare  them  entitled 
to  confidence,  and,  in  a  just  sense,  their  license  is  an  assur- 


Sec.  5]  Appearance  147 

ance,  not  only  of  their  competency,  but  of  their  character 
and  title  to  confidence. 

The  direct  control  of  the  courts  over  them  as  officers,  by 
way  of  summary  discipline  and  punislunent  to  compel  the 
performance  of  their  duty,  or  to  suspend  or  degrade  them, 
is  retained  and  exercised  as  a  guaranty  of  their  fidelity.  It 
is  no  denial  of  the  rule  that,  where  there  are  special  cir- 
cumstances calling  for  its  relaxation,  the  courts  may  and 
do  relieve  from  its  rigid  application.  The  exception  aris- 
ing from  such  special  circumstances  strengthens,  as  well 
as  recognizes  the  rule  itself. 

Hence,  when  an  appearance  is  entered  by  an  attorney 
without  authority,  the  inquiry,  whether  such  attorney  is 
of  sufficient  responsibility  to  answer  for  his  unauthorized 
conduct  to  the  party  injured  thereby,  is  entertained.  And 
it  may  be  proper  always  to  inquire,  whether  the  injury 
to  the  party  is  irremediable  unless  such  appearance  be  set 
aside,  and  the  i3roceedings  founded  thereon  vacated. 

In  exercise  of  their  general  equitable  control  over  their 
own  judgments,  the  <  -t  may  and  should  consider  whether 
they  can  relieve  the  party  for  whom  an  unauthorized  ap- 
pearance is  made,  without  undue  prejudice  to  the  party, 
who  has  in  good  faith  relied  upon  such  appearance  and  the 
official  character  of  the  attorney  who  appears. 

But  it  would  be  at  variance  with  the  scheme  and  plan 
upon  which  we  universally  administer  the  law,  if  a  de- 
fendant could  be  prosecuted  by  a  responsible  attorney,  in 
full  authority  to  practice  in  our  courts,  and  after  having 
successfully  and  in  good  faith  defended,  as  the  case  might 
be,  through  all  the  tribunals  of  justice,  and  to  final  judg- 
ment in  the  court  of  last  resort,  be  required  to  submit  to  an 
order  setting  aside  the  proceedings,  and  be  left  to  be  again 
prosecuted  for  the  same  cause  of  action,  on  the  mere 
ground  that  the  plaintiff's  attorney  had  no  authority  from 
the  plaintiff  to  bring  the  action.  The  law  which  gives  to  at- 
torneys their  commissions,  must  be  deemed  to  guarantee 
to  defendants  protection  against  such  a  result.  And,  at  the 
same  time,  the  rule  should  jaeld  to  equitable  considerations, 
where  they  arise,  and  should  permit  the  courts  to  give 
relief  when  they  can  thereby  prevent  irremediable  wrong 
to  either  party. 

And  if  it  be  asked,  why  should  the  party  for  whom  he 


148  Tkial  Practice  [Chap.  3 

appears  be  left  to  seek  his  remedy  against  the  attorney? — 
why  should  not  the  party  who  has  been  subjected  to  an  un- 
authorized litigation  pursue  that  remedy,  rather  than  cast 
that  hazard  and  burden  on  one  who  has  done  nothing  to 
deserve  it? —  the  answer  lies  in  the  suggestion  already 
made,  that  the  law  warrants  a  party  in  giving  faith  and 
confidence  to  one  who,  by  law,  is  authorized  to  hold  himself 
out  as  a  public  officer,  clothed  with  power  to  represent 
others  in  the  courts.  And  besides  this,  the  consequences  of 
the  contrary  rule  would  often  be  altogether  disastrous. 
Evidence  would  be  lost;  witnesses  die;  the  statute  of  limita- 
tions bar  claims;  and  death  of  parties  themselves  might 
often  happen.  In  various  ways,  to  set  aside  proceedings  at 
the  end  of  a  protracted  litigation  would  be  to  work  inevit- 
able wrong  to  the  party  who  had  relied  upon  an  appear- 
ance. 

It  may  be  said  that  proof  of  the  authority  of  the  attor- 
ney to  appear  and  prosecute  should  be  demanded,  if  the 
party  would  be  safe.  If  such  demand  could  in  all  cases  be 
insisted  upon,  it  would  be  only  one  step  toward  safety.  It 
might  often  be  practically, ineffectual.  Ex  parte  evidence 
of  authority  might  be  produced,  and  yet,  if  the  party  might 
afterward  impeach  it,  the  question  would  again  arise,  in 
all  its  force.  Besides,  it  is  not  the  practice  to  require  at- 
torneys to  produce  their  authority,  except  in  special  cases. 
No  doubt  there  is  power  in  the  courts  to  order  it:  it  has 
sometimes  been  done.  {Ninety-nine  Plaintiffs  v.  Vanderhilt, 
4  Duer,  632.) 

When,  pending  a  litigation,  the  authority  of  the  attorney 
to  appear  is  denied,  and  application  is  made  in  due  season, 
the  court,  if  probable  cause  appears,  would,  in  general, 
protect  the  party  applying.  Still,  the  general  rule  remains, 
that  a  retainer  will  be  presumed;  and  the  adverse  party, 
having  no  notice  or  ground  of  suspicion,  may  act  on  that 
presumption.  (3  Merivale,  12;  2  Mylne  &  Keen,  1;  1  Ves. 
196;  6  Johns.  297;  9  Paige,  496.)  And  in  general  where 
there  are  no  circumstances  of  suspicion,  of  facts  indicating 
fraud,  and  no  evidence  of  bad  character  discrediting  the 
appearance,  the  courts  do  not  require  a  respectable  and 
responsible  attorney  to  exhibit  his  authority  to  appear. 
(6  Johns.  34;  5  Duer,  643.) 

It  is,  however,  suggested,    that,    as    in    ejectment,    the 


Sec.  5]  Appearance  149 

defendant  is  authorized  by  statute  to  require  the  attorney 
for  the  plaintiff  to  produce  his  authority  (2  R.  S.  306),  this 
action  should  be  deemed  an  exception  to  the  general  rule, 
and  it  be  held  that  the  defendant's  own  laches  have  caused 
his  misfortune,  if  it  afterward  appear  that  the  plaintiff  did 
not  authorize  the  suit.  But  it  is  obvious  that  the  statute 
itself  does  not  furnish  complete  protection.  It  only  makes 
the  production  of  apparent  written  authority,  sustained  by 
affidavit,  presumptive  evidence.  And  if  the  authority  do 
not  actually  exist,  the  same  question  will  arise  in  ejectment 
as  in  other  actions :  How  far  is  the  plaintiff  bound  by  the 
appearance  of  an  attorney  for  him!  And,  as  respects  an 
appearance  for  a  defendant,  the  statute  makes  no  provision. 
I  do  not  think,  therefore,  that  the  omission  of  the  defend- 
ant to  demand  the  production  of  authority,  where  he  has 
nothing  to  put  him  on  his  guard,  awaken  his  suspicion,  or 
to  lead  him  to  distrust  the  good  faith  of  the  attorney  who 
prosecutes  the  action,  should  affect  his  right  to  insist  upon 
his  judgment,  when  it  is  not  claimed  that  the  attorney  is 
not  of  full  and  sufficient  responsibility  to  answer  to  the 
plaintiff  for  any  costs  or  other  damage  he  may  have  sus- 
tained. 

Judgment  affirmed. 


DANVILLE,      HAZLETON      AND      WILKES-BARRE 
RAILROAD  COMPANY,  APPELLANT,  V.  RHODES. 

Supreme  Court  of  Pennsylvania.    1897. 

180  Pennsylvania  State,  157, 

Appeal  by  plaintiff  from  order  striking  off  warrant  of 
attorney. 

David  C,  Harrington,  for  appellant. 

George  L,  Crawford,  for  appellee. 

Opinion  of  Mr.  Justice  Williams  : — On  the  seventh  day  of 
June,  1892,  D.  C.  Harrington,  Esq.,  an  attorney  at  law  reg- 
ularly admitted  to  practice  in  the  courts  of  Philadelphia 


150  Trial  Practice  [Chap,  o 

filed  tlie  bill  in  equity  in  this  case  as  the  attorney  of  the 
plaintiff. 

On  the  eighteenth  day  of  the  same  month  a  rule  was 
entered  in  the  minutes  by  the  prothonotary,  on  the  direction 
of  Crawford  &  Laughlin,  attorneys  for  Rhodes  et  al.  and 
the  D.  H.  and  W.  Eailroad  Co.,  requiring  D.  C.  Harrington 
to  file  his  warrant  of  attorney.  No  affidavit  or  statement  of 
facts  tending  to  throw  doubt  upon  his  authority  was  filed 
and  no  application  whatever  was  made  to  the  court  of 
which  Harrington  was  a  sworn  officer.  On  the  twenty-fifth 
of  the  same  month  Harrington  filed  a  warrant  of  attorney 
in  due  form  executed  by  the  corporation  under  its  seal. 
This  was  a  compliance  with  the  rule  and  it  should  regu- 
larly have  been  discharged.  The  court  however  without 
any  formal  disposition  of  the  warrant  of  attorney,  and 
without  even  a  suggestion  on  the  record  that  it  was  not 
what  it  purported  to  be,  granted  a  rule  on  Harrington  to 
show  cause  why  the  warrant  should  not  be  struck  from  the 
records.  This  rule  it  subsequently  made  absolute  and  the 
w^arrant  was  struck  off.  For  what  reason  this  rule  was 
granted,  or  for  what  reason  it  was  made  absolute,  it  is  im- 
possible to  tell  so  far  as  the  records  in  this  case  are  con- 
cerned. Having  thus  disposed  of  the  attorney  of  the  plain- 
tiff, a  rule  was  at  once  granted  requiring  the  plaintiff"  to 
show  cause  why  the  bill  should  not  be  struck  from  the 
records.  This  was  soon  after  made  absolute.  The  cause 
was  sent  out  of  court,  after  the  attorney,  in  a  novel  and 
peremptory  manner.  The  record  shows  no  reason  what- 
ever, given  by  Messrs.  Crawford  &  Laughlin,  for  asking 
either  of  these  rules,  and  none  given  by  the  court  below  for 
making  them  absolute.  We  know  of  no  authority  for  such 
a  practice.  It  is  elementary  law  that  an  attorney  is  an 
officer  of  the  court  in  whicli  he  is  admitted  to  practice.  His 
admission  and  license  to  practice  raise  a  presumption 
])rima  facie  in  favor  of  his  right  to  appear  for  any  person 
whom  he  undertakes  to  represent.  When  his  authority  to 
do  so  is  questioned  or  denied  the  burden  of  overcoming 
this  presumption  in  his  favor  rests  on  liim  who  questions 
or  denies  his  authority,  and  such  person  must  show  by  affi- 
davit the  existence  of  facts  tending  to  overcome  tlie  pre- 
sumption before  lie  can  be  called  upon  to  file  his  warrant 
of  attorney:     Weeks  on  Attorneys  at  T^aw,  387  to  400. 


Sec.  5]  Appeakance  151 

The  established  practice  in  this  country  and  England  is 
to  apply  to  the  court  by  petition  stating  the  facts  relied 
on  to  overcome  the  presumption  and  asking  a  rule  upon 
the  attorney  to  file  his  warrant.  When  he  has  complied 
with  the  rule  by  filing  a  warrant  sufficient  in  form  and  in 
the  manner  of  its  execution,  the  rule  has  been  complied 
with  and  is  functus  officio.  If  the  warrant  is  alleged  to  be 
defective,  or  forged,  or  in  any  manner  insufficient  to  justify 
the  court  in  treating  it  as  authority  for  the  appearance  of 
the  attorney,  the  defect  should  be  pointed  out  by  exceptions 
and  its  sufficiency  passed  upon  by  the  court.  If  the  court 
holds  the  warrant  sufficient  the  case  proceeds.  If  it  is  held 
insufficient  proceedings  therein  will  be  stayed  or  in  a  proper 
case  the  suit  may  be  dismissed.  In  Campbell  v.  Galhreath, 
5  Watts,  423,  Justice  Kennedy  discusses  the  practice  to 
some  extent  and  says  at  page  430,  that  after  it  is  ascer- 
tained that  the  attorney  for  the  plaintiff  has  no  authority 
to  appear  for  him  in  the  suit  pending,  the  defendant  may 
proceed  to  have  it  dismissed.  The  same  practice  prevails 
in  the  United  States  courts  and  in  those  of  most  of  the 

states.    *     *    * 

*  *  * 

[Order  affirmed  on  other  grounds.] 


CHAPTER  IV. 
CONTINUANCE. 

Section  1.     Sueprise  at  the  Tkiax,. 

PITTSBURGH,  CINCINNATI,  CHICAGO  &  ST.  LOUIS 
RAILWAY  COMPANY  V.  GROM. 

Court  of  Appeals  of  Kentucky.     1911. 

142  Kentucky,  51. 

Opinion  of  the  Court  by  Wm.  Rogees  Clay,  Commis- 
sioner— Affirming. 

Appellee,  William  Grom,  brought  this  action  against  the 
appellants,  Pittsburg,  Cincinnati,  Chicago  &  St,  Louis 
Railway  Company  and  Pennsylvania  Railroad  Company,  to 
recover  damages  in  the  sum  of  $1,999  for  personal  injuries, 
alleged  to  have  been  due  to  the  negligence  of  the  railroad 
companies  while  he  was  a  passenger  on  their  lines  of  rail- 
road. The  jury  awarded  him  a  verdict  for  the  full  amount 
sued  for,  and  the  defendants  have  appealed. 

The  facts,  briefly  stated,  are  as  follows :  Appellee  bought 
a  ticket  from  Louisville  to  Atlantic  City  and  return.  The 
accident  occurred  between  Pittsburg  and  Altoona,  in  the 
State  of  Pennsylvania.  At  the- time  of  the  accident  appel- 
lee was  sitting  in  the  middle  of  the  sixth  seat  from  the 
front  end  of  the  car.  He  was  struck  by  some  hard  and 
heavy  substance  over  the  left  eye.  The  frontal  bone  was 
fractured  and  his  eye  so  seriously  injured  that  the  sight 
thereof  is  permanent!}^  impaired.  At  the  time  of  the  acei 
dent  a  freight  train  was  passing.  Just  before  and  after 
the  injury,  witnesses  heard  something  rattling  against  the 
side  of  the  car.  It  sounded  like  a  chain.  Indentations 
were  found  on  the  side  of  the  car  which  looked  as  if  they 
had  been  made  by  an  irregular  object  in  the  form  of  a  chain. 
One  of  the  witnesses  saw  the  passing  shadow  of  the  object 
that  struck  appellee,  and  it  looked  like  a  chain.  Immediate- 
ly after  the  injury  several  persons  searched  the  car,  and 
nothing  was  found  therein  which  could  have  caused  the 

152 


Sec.  1]  Continuance  153 

injury.  Appellant's  testimony  was  to  the  effect  that  on 
the  freight  trains  ordinarily  used  there  are  no  chains  in  a 
position  to  be  swung  out  so  as  to  strike  or  enter  a  train  on 
an  adjacent  track,  and,  even  if  there  were  such,  they  would 
hang  by  the  side  of  the  car  by  reason  of  their  own  weight, 
and  would  not  swing  out  from  the  car  by  reason  of  the  vel- 
ocity of  the  train.  The  witnesses,  however,  had  no  knowl- 
edge of  the  condition  of  the  particular  train  in  question 
and  they  admit,  on  cross-examination,  that  there  were  num- 
erous chains  in  and  about  freight  cars. 
********** 

At  the  conclusion  of  the  evidence  for  appellee,  appel- 
lants' senior  counsel  filed  his  affidavit  and  moved  for  a 
continuance  on  the  ground  of  surprise.  In  this  affidavit 
counsel  stated,  in  substance,  that  he  had  had  sole  charge  of 
the  defense  of  the  action  that  was  being  tried;  that  there- 
tofore he  had  made  a  most  thorough  investigation  of 
the  facts  of  the  case  and  had  had  submitted  to  him 
full  reports  made  by  the  agents  of  appellants  as  to  all 
facts  connected  with  the  injur}-.  He  had  never  heard  until 
the  day  before  the  trial  that  any  attempt  would  be  made 
to  show  that  appellee  was  struck  by  a  chain,  when  he  was 
then  informed  in  a  general  waj^  by  appellee's  counsel  that 
he  would  show  that  fact.  In  all  the  investigations  made 
and  in  the  reports  submitted  to  him,  it  had  never  been  sug- 
gested that  the  accident  could  have  happened  in  that  way. 
He  was,  therefore,  taken  completely  by  surprise,  as  were 
the  appellants,  by  the  evidence  introduced  by  appellee,  and 
he  was  not  then  prepared  to  rebut  such  evidence.  He  had 
taken  the  deposition  of  the  train  conductor,  but  did  not  ask 
him  about  a  chain,  because  he  had  never  heard  it  suggested 
or  thought  it  possible  that  a  chain  could  have  anything  to 
do  with  the  accident.  If  allowed  an  opportunity  to  do  so 
he  could  and  would  procure  testimony  of  witnesses — all 
residing  in  the  state  of  Pennsylvania — which  would  prove 
(1)  that  there  were  no  marks  on  the  car  on  which  appellee 
was  injured  indicating  that  it  had  recently  been  struck 
by  anything;  (2)  that  all  the  persons  who  were  in  the  coach 
and  near  appellee  were  asked  by  the  conductor  and  brake- 
man  as  to  the  cause  of  the  accident,  and  none  of  them 
could  give  any  explanation  of  it,  and  none  of  them  said 
anything  about  hearing  a  chain  or  seeing  a  chain,  and  none 


154  Trial  Practice  [Chap.  4 

of  tliem  suggested  that  a  chain  had  anything  to  do  with  the 
accident;  (3)  that  at  the  time  there  were  no  chains  npon 
or  attached  to  appellants'  engine  or  cars,  or  forming  any 
part  of  the  equipment  thereof  that  were  long  enough  to 
reach  into  the  window  of  a  passenger  coach  on  an  ad- 
jacent track  and  strike  a  passenger,  as  appellee  was  struck; 
(4)  that  all  chains  connected  with  such  equipment  were, 
however,  short  chains,  and  in  the  event  of  their  breaking 
they  would  drag  on  the  ground,  and  could  not  swing  out 
in  a  horizontal  position  so  as  to  come  in  contact  with  a  train 
on  an  adjacent  track;  that  such  a  thing  is  a  physical  im- 
possibility; (5)  that  "shortly  after  the  accident  to  plain- 
tiff the  conductor  caused  telegraphic  notice  to  be  given  of  it 
and  instructions  were  immediately  given  to  inspect  all  west- 
bound freight  trains  that  had  met  plaintitf 's  train  to  see  if 
anything  was  attached  to  or  projected  from  them  that  could 
have  caused  the  accident,  and  such  investigation  was  made 
and  nothing  found  to  explain  the  cause  of  the  accident;" 
that  these  facts  could  be  established  by  the  testimony  of 
several  witnesses  (naming  them)  and  could  not  be  estab- 
lished by  any  witnesses  living  in  the  State  of  Kentucky. 
Did  not  anticipate,  nor  did  the  railroad  companies  antici- 
pate, and  no  one  could  have  reasonably  anticipated,  that 
appellee  would  attempt  to  prove  that  his  injuries  were 
caused  in  such  an  unusual  or  unheard-of  manner  as  being 
struck  by  a  chain.  If  the  railroad  companies  had  known  in 
time  that  such  proof  would  be  offered,  they  could  and  would 
have  met  it  by  showing  facts  to  the  contrary. 

The  foregoing  affidavit  was  not  filed  until  appellants' 
motion  for  a  peremptory  instruction,  at  the  conclusion  of 
appellee's  evidence,  had  been  overruled.  Before  asking  for 
a  continuance  on  the  ground  of  surprise,  therefore,  counsel 
for  appellants  first  took  the  chance  of  appellee's  failing  to 
make  out  his  case.  Though  apprised  of  the  fact  in  a  gen- 
eral way  on  the  day  before  the  trial  that  appellee  would 
attempt  to  show  that  he  was  struck  by  a  chain,  he  did  not 
ask  for  a  continuance  of  the  case  when  it  was  called  for 
trial.  At  the  time  of  the  trial  the  law  of  Pennsylvania  was 
in  proof.  Tounsel  knew  that  under  that  law  upon  mere 
proof  of  iii.iiiry,  unaccompanied  by  any  facts  tending  to 
show  a  collision  or  a  defect  of  cars,  track,  roadway,  ma- 
chinery or  other  negligence  appellee  could  not  recover, 


Sec,  1]  Continuance  155 

The  deposition  of  the  conductor  showed  that  there  was 
absolutely  nothing  the  matter  with  the  train  on  which  ap- 
pellee was  a  passenger.  A  search  was  made  to  find  whether 
or  not  the  object  which  had  struck  appellee  was  in  the  car, 
and  nothing  was  found.  Knowing  the  law  of  Pennsylvania, 
counsel  should  have  anticipated  that  appellee  would  at- 
tempt to  prove  facts  tending  to  show  negligence  in  the 
operation  or  mechanical  appliances  of  the  passing  train, 
as  appellee  could  not  recover  by  merely  showing  that  he 
was  injured  by  some  object,  without  showing  the  source 
from  which  it  came.  Furthermore,  counsel  admits  in  his 
affidavit  that  immediately  after  the  accident,  the  conductor 
caused  telegraphic  notice  of  the  fact  to  be  given,  and  in- 
structions were  immediately  sent  out  to  inspect  all  west- 
bound freight  trains  that  had  met  the  train  on  which 
appellee  was  a  passenger,  to  see  if  anything  was  attached 
to,  or  projected  from  them  that  could  have  caused  the  acci- 
dent and  such  investigation  was  made  and  nothing  found 
to  explain  the  cause  of  the  accident.  This  being  true,  coun- 
sel should  have  taken  the  depositions  of  witnesses  ac- 
quainted with  such  facts,  and  should  not  have  gone  into  the 
trial  in  the  hope  that  appellee  would  fail  to  make  out  his 
case,  and,  in  the  event  that  he  did  make  out  his  case,  ap- 
pellants w^ould  be  granted  a  continuance  and  a  further 
opportunity  to  prove  facts  which  they  could  have  estab- 
lished before  the  trial.  We,  therefore  conclude  that  the 
court  did  not  err  in  failing  to  grant  the  continuance  asked 

for. 

********** 

Judgment  affirmed. 


PETERSON  V.  METROPOLITAN  STREET  RAILWAY 

COMPANY. 

Supreme  Court  of  Missouri.    1908, 

211  Missouri,  498. 

Lamm,  J. — Peter  L.  Peterson  sued  for  damages — his 
cause  of  action  the  negligence  of  defendant's  servants  man- 
Jiing  one  of  its  street  cars  in  Kansas  City,  Missouri,  on  the 


156  Teial  Peactice  [Chap.  4 

13th  dsLj  of  December,  1902.  Defendant  appeals  from  a 
judgment  in  favor  of  Peterson  for  $5,000.  Here,  his  death 
was  suggested  and  proceedings  had  reviving  the  the  cause 
in  the  name  of  Henrietta,  administratrix  of  his  estate. 

Did  the  court  err  in  allowing  amendments ;  and  err  again 
in  refusing  a  continuance?    We  think  not;  because; 

(a)  The  statutory  right  to  amend  a  petition  is  not  open 
to  discussion.  The  right  of  a  court  to  permit  a  petition  to 
be  amended  is  nothing  more  than  plain,  everyday,  hard- 
headed  sense.  The  right  to  act  with  good  sense  may 
(modestly)  be  assumed  to  be  inherent  in  any  court,  and  (it 
is  likely)  would  exist  without  written  law.  Counsel  make 
the  point  that  plaintiff  had  no  right  to  amend  the  petition 
at  the  trial,  but  they  give  no  reason  or  cite  no  authority. 
All  things,  says  Coke,  are  confirmed  or  impugned  in  one 
of  two  ways — by  reason  or  authority.  The  point  should 
not  have  been  made;  for  the  only  possible  question  is  one 
of  terms  on  which  the  amendment  may  go  and  that  question 
is  not  raised. 

(b)  The  principal  proposition  under  this  head  is  the 
refusal  to  grant  a  continuance  after  amendment.  It  is 
argued  that  prior  to  the  amendments  the  petition  stated  no 
cause  of  action  because  there  was  no  averment  that  the  car 
had  stopped  to  receive  passengers  who  might  undertake  to 
get  on;  that  the  amendments  supplied  that  omission;  that 
after  amendment  the  petition  for  the  first  time  stated  a 
cause  of  action;  and  that  amendments  of  that  character, 
made  at  the  commencement  of  a  trial,  entitling  the  defend- 
ant to  a  continuance  as  of  course,  much  more  should  one 
go  in  view  of  the  application  and  affidavit  filed  in  this  in- 
stance. 

But  we  can  agree  neither  to  the  premise,  nor  to  the  con- 
clusion if  the  premise  were  true.  The  petition  did  state  a 
cause  of  action.  It  alleged  that  defendant's  Main  street 
cars  regularly  stopped  about  ten  feet  north  of  Twelfth 
for  the  purpose  of  permitting  passengers  to  get  on  and  off. 
That  plaintiff  on  the  13th  day  of  December,  1902,  attempted 
to  enter  defendant's  car  at  said  point  to  take  passage  and 
that,  while  in  the  act  of  doing  so  with  his  foot  upon  the 
step  at  the  back  end  of  the  car,  defendant's  servants  care- 


Sec.  Ij  Continuance  157 

lessly  and  negligently  started  said  car  forward  with  a  vio- 
lent jerk. 

The  allegation  that  the  car  '^ started"  was  by  necessary 
implication  an  allegation  that  the  car  was  stationary  at 
the  time.  A  thing  can't  start  without  a  stop.  The  one  in- 
cludes the  other,  ex  vi  termini.  We  had  occasion  to  discuss 
a  similar  contention  in  Flaherty  v.  Railroad,  207  Mo.  1  c. 
335,  where  it  was  said:  "But  in  ordinary  speech,  if  A 
says  B  'moved  forward,'  there  is  a  fair  implication,  at 
least,  that  A  means  that  B  was  in  a  condition  of  repose 
when  the  movement  began.  If  A  was  bent  on  expressing 
the  idea  that  B  was  going  at  the  time,  but  then  and  there 
began  to  hasten  his  pace,  he  would  naturally  have  inserted 
some  word  to  convey  the  accelerated  motion.  The  absence 
of  such  modifying  word,  here,  is  not  without  significance." 

What  was  said  in  the  Flaherty  case,  though  in  discussing 
an  instruction,  applies  here.  If  the  petition  had  said  that 
the  car  started  forward  "more  rapidly"  that  would  convey 
the  idea  it  was  moving  at  the  time,  but  there  is  no  such  word 
used  and  the  petition  is  only  subject  to  the  criticism  that  it 
defectively  or  obscurely  stated  a  cause  of  action — not  that 
it  stated  none  whatever.  It  would  have  been  good  after 
verdict. 

But,  if  it  were  conceded  that  the  petition  stated  no  cause 
of  action  before  amendment,  defendant  would  not  be  en- 
titled to  a  continuance,  as  of  course,  on  that  ground.  The 
canonized  rule  is,  and  all  the  cases  hold,  that  a  continuance 
is  addressed  to  the  sound  discretion  of  the  trial  court — a 
discretion  to  be  soundly  exercised.  It  is  trite  law  that 
every  intendment  exists  in  favor  of  the  trial  court's  action 
on  an  application  for  a  continuance.  The  statute  under 
which  tliese  particular  amendments  were  allowed  is  Re- 
vised Statutes  1899,  section  688,  reading:  "When  a  party 
shall  amend  any  pleading  or  proceeding,  and  the  court 
shall  be  satisfied,  by  affidavit  or  otherwise,  that  the  oppo- 
site party  could  not  be  read}'  for  trial  in  consequence 
thereof,  a  continuance  may  be  granted  to  some  day  of  the 
same  term,  or  at  the  next  regular  term  of  the  court." 

It  will  be  seen  from  that  statute  that  an  affidavit  is  not 
essential.  The  court  may  be  satisfied  "by  affidavit  or 
otherwise"  that  the  opposite  party  could  not  be  ready  for 
trial  in  consequence  of  the  amendment. 


158  Tkial,  Practice  [Chap.  4 

There  was  no  attempt,  except  by  the  affidavit,  to  satisfy 
the  court  that  the  defendant  could  not  be  ready  for  trial; 
attending  to  that  affidavit,  it  does  not  show  defendant  had 
not  subpoenaed  witnesses  on  the  issues  made  by  the  amend- 
ments. Subsequent  events  showed  it  had — and  all  it  knew 
of.  It  does  not  state  that  the  allegations,  as  amended,  are 
not  true,  or  that  it  had  a  meritorious  defense  to  the  new 
matter,  nor  does  it  point  out  that  defendant  could  be  ready 
to  meet  those  allegations  at  any  other  time.  Hence,  we 
find  no  fault  with  the  court's  ruling  on  the  application.  It 
is  fully  sustained  by  the  following  cases  cited  by  counsel 
construing  section  688,  supra:  Colhoun  v.  Craivford,  50 
Mo.  458;  Keltenhaugh  v.  Railroad,  34  Mo.  App.  147;  Pifer 
V.  Stanley,  57  Mo.  App.  516;  Keeton  v.  Railroad^  116  Mo. 
App.  281. 

The  point  is  ruled  against  defendant. 


EAHLES  V.  J.  THOMPSON  &  SONS  MANUFACTUR- 
ING COMPANY. 

Supreme  Court  of  Wisconsin.    1909. 

137  Wisconsin,  506. 

Timlin,  J.  The  original  complaint  was  quite  inartistic. 
But  after  setting  forth  the  age,  nationality,  and  occupation 
of  the  plaintiff  and  his  lack  of  knowledge  of  the  English 
language  and  the  corporate  character  and  the  business  of 
the  defendant,  it  averred  lack  of  knowledge  of  machinery 
and  of  tlie  dangers  attending  its  operation  and  lack  of  ex- 
perience on  the  part  of  the  plaintiff.  Defendant  had  and 
used  a  described  drop  hammer,  out  of  repair  and  defec- 
tive. Defendant,  knowing  the  plaintiff's  want  of  experi- 
ence, and  without  instructing  the  plaintiff  concerning  his 
duties  except  as  specified,  and  without  warning  the  plain- 
tiff that  there  was  any  danger  in  working  about  the 
drop  hammer  or  that  it  was  liable  to  fall,  ordered  the  plain- 
tiff to  assist  the  operator  of  tlie  drop  hammer.  Plaintiff, 
assisting  without  knowledge  of  the  danger,  was  injured  by 


Sec.  1]  Continuance  159 

the  hammer  dropping  upon  his  hand,  which  in  consequence 
of  this  injury  was  amputated.  That  if  the  said  defendant 
by  its  officers  or  agents,  its  superintendent  and  foreman 
acting  as  vice-principals,  had  warned  or  in  any  manner  in- 
structed the  plaintiff  as  to  the  dangers  and  the  use  of  the 
said  hammer,  the  precautions  to  be  taken  about  the  same, 
plaintiff  would  not  have  been  injured  in  any  manner  and 
would  have  avoided  the  said  injury.     Again: 

''That  the  cause  of  the  injury  to  this  plaintiff  was  the 
neglect  of  the  said  defendant  *  *  *  to  warn  the  said  plain- 
tiif  of  the  dangers  and  of  the  dangerous  condition  of  the 
said  machine." 

No  defect  in  the  machine  having  been  shown,  but  the 
evidence  on  the  part  of  the  plaintitf  tending  to  show  that 
the  plaintiff  accidentally  stepped  on  the  treadle  of  the  drop 
hammer  while  having  his  hand  in  the  path  of  the  descend- 
ing hammer,  the  defendant  at  the  close  of  the  plaintiff's 
evidence  moved  that  the  plaintiff  be  non-suited.  Plain- 
tiff then  asked  leave  to  amend  his  complaint,  presenting  an 
amended  complaint,  which  is  the  same  as  the  original  com- 
plaint except  that  therein  the  negligence  of  the  defendant 
was  predicated,  not  upon  any  defect  in  the  machine,  but 
upon  the  ignorance  and  inexperience  of  the  plaintiii, 
known  to  the  defendant,  and  the  failure  of  the  defendant  to 
instruct  or  warn  the  plaintiff  before  or  at  the  time  of 
placing  plaintiff  to  work  upon  the  drop  hammer.  The  court 
allowed  this  amended  complaint  to  be  filed,  whereupon 
counsel  for  the  defendant  asked  for  the  ''continuance  of 
the  case  over  the  term,  the  immediate  taxing  by  the  clerk 
of  this  court  of  the  taxable  disbursements  of  the  defendant 
down  to  this  time,  and  the  usual  attorney  fee  of  $25.  By 
the  Court:  The  motion  is  granted  upon  the  sole  ground 
that  $10  costs  be  paid  forthwith."  Exception  to  this  ruling 
was  taken,  and  error  is  assigned  on  this  ruling. 

We  perceive  no  error  in  the  ruling.  It  was  proper  to 
allow  the  amendment  on  the  trial.  Gates  v.  Paul,  117  Wis. 
170,  9-1:  N.  W.  55.  Where  the  complaint  is  amended  on  the 
trial,  in  order  to  entitle  the  defendant  to  a  continuance  he 
must  make  a  showing,  if  not  by  affidavit,  at  least  by  a 
statement  to  the  court  based  on  the  pleadings  apparently 
supporting  such  statement,  that  he  is  unprepared  to  meet 
^nd  cannot,  with  the  evidence  at  hand  or  available,  meet  the 


160  Triai^  Peacticb  [Chap.  4 

issues  raised  by  the  amended  complaint.  W'ithee  v.  Simon, 
104  Wis.  116,  80  N.  W.  77.  The  amendment  here  brought 
about  no  radical  change  of  the  issues  and  the  terms  were  in 
the  discretion  of  the  court.  III.  S.  Co.  v.  Budzisz,  106  Wis. 
499,  82  N.  W.  534;  Mcllquham  v.  Barber,  83  Wis.  500,  53 
N.  W.  902 ;  Pellage  v.  Pellage,  32  Wis.  136,  141 ;  Schaller 
V.  C.  &  N.  W.  R.  Co.,  97  Wis.  31,  71  N.  W.  1042.  *  *  * 


Section  2.    Absence  op  Witness. 

CAMPBELL  V.  DREHER. 

Court  of  Appeals  of  Kentucky.    1908. 

33  Kentucky  Law  Reporter,  444. 

Lassing,  J.  In  a  collision  between  appellee,  a  16-year- 
old  boy,  on  a  bicycle  and  appellant's  automobile  appellee 
was  injured.  Conceiving  that  his  injuries  were  the  direct 
result  of  appellant's  negligence  in  operating  his  machine, 
appellee,  through  his  father  as  next  friend,  instituted  suit 
to  recover  damages.  Appellant  denied  liability,  and  plead- 
ed that  the  injuries,  if  any,  to  the  boy  were  the  result  of 
his  own  carelessness  and  negligence.  Upon  the  issues  thus 
joined  a  trial  was  had,  which  resulted  in  a  verdict  in  favor 
of  appellee  for  $500.  To  reverse  this  judgment  this  appeal 
is  prosecuted. 

Appellant  relies  upon  four  grounds:  *  *  *;  second,  be- 
cause the  trial  court  erred  in  refusing  him  a  continuance 
on  his  showing,  made  at  the  time  of  the  trial,  that  the  wit- 
ness Dr.  Geo.  W.  Leachman,  was  absent  from  the  state, 
and  that  his  testimony  could  not  be  procured  at  that 
time;  *  *  *  * 

Appellant's  second  ground  for  reversal  is  not  well  taken 
for  two  reasons:  First,  it  is  not  shown  that  he  used  any 
diligence  whatever  to  secure  the  presence  of  this  witness 
at  his  trial.  The  record  show!^  that  his  answer  was  filed  on 
the  15th  day  of  December,  19Q§.    The  reply  was  filed  on  the. 


Sec.  2]  CoNTINtJANCE  161 

22nd  day  of  December,  1906,  completing  the  issues.  The 
case  was  called  for  trial  the  26th  of  March,  1907,  or  more 
than  90  days  after  the  issues  were  made  up.  During  all  of 
this  time,  save  about  two  weeks  prior  to  the  date  of  the 
trial,  as  shown  by  the  affidavit,  the  witness.  Dr.  George  W. 
Leachman,  was  within  the  jurisdiction  of  the  court,  and 
could  have  been  subpoenaed,  and  his  attendance  procured. 
This  was  not  done,  and  the  fact  that  appellant  did  not  know 
he  was  going  to  leave  offers  no  excuse  for  his  failure  to 
have  a  subpoena  issued  for  this  witness  at  a  time  when  he 
knew  he  was  within  the  jurisdiction  of  the  court  and  could 
have  been  served.  The  court  did  not  err  in  refusing  to 
continue  the  case  because  of  the  absence  of  this  witness  for 
the  further  reason  that  it  is  shown  that  his  evidence  would 
have  been  merely  cumulative.  He  was  in  the  automobile 
with  the  witness  John  Straus,  and  the  facts  to  which  he 
would  have  testified,  if  present,  as  disclosed  by  the  affi- 
davit, were  testified  to  by  the  witness  John  Straus.  The 
ruling  of  the  trial  judge,  in  permitting  this  affidavit  for 
continuance  to  be  read  as  the  deposition  of  the  absent  wit- 
ness, was  certainly  as  favorable  to  appellant  as  he  could 
ask. 

Perceiving  no  error  in  the  conduct  of  the  trial  prejudicial 
to  the  rights  of  appellant,  the  judgment  is  affirmed. 


TERRAPIN  V.  BARKER. 

Supreme  Court  of  Oklahoma.    1910. 

26  Oklahoma,  93. 

This  action  was  brought  in  the  District  Court  of  Wash- 
ington county  by  defendant  in  error  to  recover  for  services 
rendered  by  him  to  plaintiff  in  error  as  an  attorney,  of  an 
alleged  reasonable  value  of  $1,000,  and  for  expenses  in- 
curred and  paid  out  by  him  for  plaintiff  in  error  in  render- 
ing said  services.  From  a  verdict  and  judgment  in  favor  of 
defendant  in  error,  hereafter  called  ''plaintiff,"  plaintiff 
in  error,  hereafter  called  ' '  defendant, ' '  brings  this  proceed- 

T.  P.— 11 


162  Teiai.  Practice  [Chap.  4 

ing  in  error.  The  facts  alleged  in  the  pleadings  and  estab- 
lished by  the  evidence,  in  so  far  as  they  are  necessary  in 
the  consideration  of  the  questions  presented  by  this  pro- 
ceeding, will  be  stated  in  the  opinion. 

********** 

Hayes,  J.  (after  stating  the  facts  as  above.)  After  an- 
nouncement of  both  parties  in  the  trial  court  that  they 
were  ready  for  trial,  a  motion  by  defendant  to  strike  out 
certain  23ortions  of  plaintiff's  reply  to  his  answer  was  over- 
ruled, and  he  thereupon  filed  a  motion  for  continuance, 
which  was  also  overruled.  His  motion  for  continuance 
stated,  that  he  was  informed  that  two  certain  persons  who 
were  absent  had  information  material  to  his  case;  that  he 
has  a  right  to  expect  that  they  would  be  in  attendance  at 
the  trial  of  his  cause.  Section  5836  of  the  Compiled  Laws 
of  Oklahoma  of  1909  prescribes  what  an  application  for  con- 
tinuance on  account  of  the  absence  of  evidence  shall  con- 
tain. It  must  show  the  materiality  of  the  evidence  ex- 
pected to  be  obtained ;  that  due  diligence  has  been  used  to 
obtain  it;  where  the  witnesses  reside,  if  their  residence  is 
known  to  the  party;  the  probability  of  procuring  their  tes- 
timony within  a  reasonable  time ;  and  what  facts  mover  be- 
lieves the  witness  will  prove;  and  that  he  believes  them 
to  be  true. 

The  motion  in  this  case  fails  to  contain  several  of  these 
essential  elements.  No  showing  whatever  is  made  in  the 
application  of  any  diligence  used  by  plaintiff  in  error  to 
obtain  the  attendance  of  the  absent  witnesses ;  nor  does  the 
affidavit  state  the  residence  of  but  one  of  said  witnesses. 
No  showing  is  made  that  their  testimony  can  be  procured 
within  a  reasonable  time;  nor  is  any  statement  made  as  to 
any  facts  that  can  be  established  by  them  that  would  be 
material  to  the  case.  It  is  stated  that  if  one  of  the  wit- 
nesses was  present  he  would  testify  that,  "so  far  as  he  is 
informed,  defendant  in  error  was  not  plaintiff  in  error's 
attorney  in  the  matter  in  which  he  alleges  he  rendered  the 
services  for  plaintiff  in  error."  But  such  evidence  would 
be  incompetent.  The  witness  could  not  be  permitted  to 
testify  as  to  liis  information.  The  application  also  fails  to 
state  that  applicant  believes  that  the  alleged  facts  which 
tlie  absent  witness  will  testify  to  are  true.  An  application 
for  continuance  could  hardly  be  more  defective  than  the 


Sec.  2j  Continuance  163 

one  here  relied  upon.  It  is  not  an  abuse  of  discretion  to 
overrule  an  application  for  continuance,  where  no  diligence 
is  shown  to  procure  the  attendance  of  the  witnesses.  {Siuope 
d  Son  V.  Burnliam,  Hanna,  Hunger  &  Co.,  6  Okla.  736,  52 
Pac.  924;  Kirk  v.  Territory,  10  Okla.  46,  60  Pac.  979),  and 
the  party  applying  must  clearly  state  the  facts  he  expects 
to  prove,  and  their  materiality  must  be  made  to  appear 
from  the  application  {Murphy  v.  Hood,  et  al.,  12  Okla.  593.) 
And  even  when  all  the  matters  prescribed  by  the  statute  are 
set  forth  in  an  affidavit  for  continuance,  a  continuance  will 
not  be  granted,  if  the  adverse  party  consents  that  on  a 
trial  the  facts  alleged  in  the  affidavit  shall  be  read  and 
treated  as  a  deposition  of  the  absent  witness.  Section  5836. 
supra;  Chandler  v.  Colcord,  1  Okla.  260,  32  Pac.  330.  De- 
fendant is  in  no  position  to  complain  that  his  motion  was 
overruled,  for  plaintiff  would,  in  all  events  have  been  en- 
titled to  know  what  facts  he  intended  to  establish  by  the 
absent  witnesses,  in  order  that  he  might  determine  whether 
he  would  admit  that  the  witness  would  so  testify;  and  that 
such  facts  might  be  read  to  the  jury  as  a  deposition  of  the 
absent  witnesses,  rather  than  to  suffer  the  inconvenience  of 

a  continuance. 

********** 

Finding  no  error  in  the  record  requiring  a  reversal,  the 
judgment  of  the  trial  court  is  affirmed. 
All  the  Justices  concur. 


BEAN  V.  MISSOULA  LUMBER  COMPANY. 

Supreme  Court  of  Montana.    1909. 

40  Montana,  31. 

Mr.  Chief  Justice  Brantly  delivered  the  opinion  of  the 
court. 

Contention  is  made  that  the  court  erred  in  refusing  to 
grant  to  defendant  a  postjionement  of  the  trial  because  of 
the  absence  of  one  Wendorf,  a  witness  who  was  expected 
to  be  present  and  testify  in  defendant's  favor.    The  appli- 


164  Trial  Practice  [Chap.  4 

cation  was  made  upon  affidavit  by  defendant's  counsel.  Be- 
sides setting  forth  the  facts  to  which  the  witness  would 
testify,  the  affidavit  shows  that  the  witness  was  a  resident 
of  the  state  of  Idaho;  that  he  was  then  in  that  state  and 
had  been  for  some  months;  that  he  was  the  only  witness 
who  could  testify  to  the  facts  set  forth ;  that  the  defendant 
expected  to  have  him  present,  but  that,  after  the  cause  was 
set  for  trial,  counsel  ascertained  that  he  was  ill  at  his  home 
and  was  unable  to  attend ;  and  that,  if  granted  a  postpone- 
ment, he  could  secure  the  attendance  of  the  witness  in  per- 
son. However  meritorious  the  application  may  have  been 
in  other  respects,  it  was  properly  denied,  because  it  wholly 
failed  to  show  diligence  by  defendant  in  its  efforts  to  se- 
cure the  evidence  of  the  witness.  The  cause  had  been  at 
issue  for  several  months.  The  witness  was  a  non-resident 
of  the  state  of  Montana,  and  beyond  the  jurisdiction  of  the 
court.  If  the  defendant  chose  to  rely  upon  his  promise  to 
attend — if  he  did  make  such  promise — it  did  so  at  its  own 
risk.  Under  the  circumstances,  the  only  safe  course  to 
pursue  was  to  take  the  deposition  of  the  witness.  The  re- 
fusal to  grant  a  continuance  was,  under  the  circumstances, 
not  such  an  abuse  of  discretion  as  to  call  for  interposition 
by  this  court.  The  case  of  State  v.  Metcalf,  17  Mont.  417, 
43  Pac.  182,  cited  by  counsel,  is  not  in  point.  Though  the 
application  there  made  showed  that  the  witness  resided  in 
the  state  of  Kansas,  it  appeared  that  the  defendant  knew 
not] ling  of  his  whereabouts  until  within  so  short  a  time  be- 
fore the  trial  that  it  was  impossible  to  take  his  deposition, 
and  the  postponement  was  asked  in  order  that  the  defend- 
ant might  be  given  time  to  take  it. 

Let  tlie  judgment  and  order  be  affirmed. 

'Afirmed. 
Mr.  Justice  Smith  and  Mr.  Justice  Holloway.  concur. 


Sec.  2J  Continuance  165 

HARTFORD  FIRE  INSURANCE  COMPANY  V. 
HAMMOND. 

THE  LIVERPOOL  AND  LONDON  AND  GLOBE  IN- 
SURANCE COMPANY  V.  HAMMOND. 

Supreme  Court  of  Colorado.      1907. 

41  Colorado,  323. 

Mr.  Justice  Bailey  delivered  the  opinion  of  the  court : 
The  same  questions  are  presented  in  each  of  these  cases, 
and  we  will,  therefore,  dispose  of  them  in  one  opinion. 

The  first  contention  is  that  the  court  should  have  granted 
a  continuance  of  the  trial,  asked  for  by  defendants,  appel- 
lants here.  It  appears  that  Charles  F.  Hawkins  was  a 
material  witness  on  behalf  of  the  defendants  and  that  he 
was  ill  and  unable  to  attend  the  trial.  Because  of  his 
absence,  defendants  requested  a  postponement  and  filed  an 
affidavit  wherein  were  stated  the  facts  which  Hawkins  had 
been  expected  to  testify  to.  Plaintiff  objected  to  a  continu- 
ance and  admitted  that  if  the  witness,  Hawkins,  were  pres- 
ent he  should  testify  as  stated  in  the  affidavit.  When  this 
was  done  the  application  for  a  continuance  upon  that 
ground  was  properly  overruled. — Code  of  Civil  Proc,  sec. 
177;  Baldwin  Coal  Co.  v.  Davis,  15  Colo.  App.  371;  Flor- 
ence Oil  Co.  V.  Oil  Well  Supply  Co.,  38  Colo.  124. 

We  are  unable  to  find  any  error  in  the  proceedings  in 
these  cases,  and  therefore,  are  of  the  opinion  that  each  of 
the  judgments  should  be  affirmed. 

Affirmed. 

Chief  Justice  Steele  and  Mr.  Justice  Goddard  concur. 


166  Trial  Practice  [Chap.  4 

BROWN  V.  ABILENE  NATIONAL  BANK. 

Supreme  Court  of  Texas.    18S8. 
70  Texas,  750. 

Stayton,  Chief  Justice.  On  January  25,  1886,  the 
Abilene  National  Bank  brought  an  action  against  B.  M. 
Dangherty  on  several  promissory  notes,  and  sued  out  a 
writ  of  attachment  that  was  levied  on  property  belonging 
to  Daugherty.  On  March  9,  1886,  the  appellant  filed  a  plea 
in  intervention,  in  which  he  alleged  that  he  had  also  brought 
an  action  against  Daugherty,  and  caused  a  writ  of  attach- 
ment to  be  levied  on  the  property  which  the  appellee  had 
first  caused  to  be  attached.  The  intervener  set  up  several 
grounds  on  which  he  claimed  that  precedence  should  be 
given  to  the  lien  acquired  through  the  attachment  sued  out 
by  him.  On  March  12,  1886,  a  judgment  was  rendered  in 
favor  of  the  appellee  against  Daugherty,  whereby  the  at- 
tachment lien  was  foreclosed  and  the  proceeds  of  the  at- 
tached property — the  same  having  been  sold  and  deposited 
with  the  clerk — was  directed  to  be  paid  to  the  appellee.  By 
that  judgment  no  disposition  of  the  intervention  was  made. 

On  April  2,  1886,  the  appellee  announced  ready  for  trial 
on  the  matters  set  up  in  the  intervention,  and  the  inter- 
vener made  an  application  for  continuance,  which  was  by 
the  court  overruled,  and  a  judgment  was  then  rendered  in 
favor  of  the  appellee  against  the  intervener,  who  offered  no 
evidence.  The  action  of  the  court  in  refusing  a  continuance 
is  assigned  as  error. 

The  ruling  of  the  court  refusing  a  continuance,  was  on 
the  ground  that  the  intervener  could  not  delay  the  appellee 
in  the  assertion  and  collection  of  his  claim  against  Daugh- 
erty. In  view  of  the  grounds  on  which  the  continuance  was 
sought,  it  is  unnecessary  to  inquire  whether  an  intervener, 
in  any  case,  is  entitled  to  a  continuance  whereby  a  plaintiff 
will  be  delayed  in  the  collection  of  a  judgment  against  a 
defendant;  or,  if  he  be  so  entitled,  to  determine  on  what 
terms  a  continuance  upon  sufficient  showing  should  be 
granted.  The  a])plication  for  a  continuance  was  based  on 
the  absence  of  witnesses,  and  it  showed  that  sul)poenas  for 
them  were  obtained  by  the  intervenor  on  the  day  that  he 


Sec.  3]  Continuance  167 

filed  his  pleadings  in  intervention,  but  it  did  not  show  when 
they  were  placed  in  the  hands  of  an  officer  for  service.  It 
showed  that  the  witnesses  had  been  served,  but  did  not  state 
when  they  were  summoned. 

When  a  first  application  for  a  continuance  is  sought,  by 
one  entitled  to  ask  it,  for  the  want  of  testimony,  the 
statute  requires  that  such  applicant  shall  state  "That  he 
has  used  due  diligence  to  procure  the  same,  stating  such 
diligence."  (Rev.  Stats.,  art.  1277.)  No  such  statements 
are  found  in  the  application,  which  was  verbal,  and  is  con- 
tained in  a  bill  of  exceptions.  On  an  application  for  a  con- 
tinuance, a  court  will  not  assume  a  necessary  fact  to  exist 
when  the  applicant  fails  or  is  unwilling  to  state  its  exist- 
ence. Every  fact  stated  in  the  application  may  be  true,  and 
still  due  diligence  not  have  been  used. 

The  time  when  the  subpoenas  were  served  on  the  wit- 
nesses should  have  been  stated,  in  order  that  the  court 
might  determine  whether  this  was  such  reasonable  time 
before  the  trial  as  would  enable  the  witnesses  to  be  present. 
{Conner  v.  Sampson,  22  Texas  20;  Stanley  v.  Epperson,  45 
Texas,  650.)  No  facts  are  shown  by  the  application  which 
can  take  this  case  out  of  the  general  rule. 

There  is  no  error  in  overruling  the  application  for  con- 
tinuance, and  the  judgment  will  be  affirmed. 

Affirmed. 


Section  3.    Absence  of  Attorney. 

CICERELLO  V.  CHESAPEAKE  &  OHIO  RAILWAY 

COMPANY. 

Supreme  Court  of  Appeals  of  West  Virginia.    1909. 

65  West  Virginia,  439. 

Miller,  President. 

The  plaintiff,  as  personal  representative  of  Frank  Olvino, 
deceased,  seeks  recovery  of  damages  from  defendant,  for 
negligently  causing  the  death  of  decedent  on  February 
8th,  1907,  while  employed  by  Rinehart  and  Dennis,  inde- 


168  Trial  Practice  [Chap.  4 

pendent  contractors,  near  Scott  Station,  in  Putnam  county, 
in  excavating  and  widening  a  hillside  cut  for  another  track 
along  defendant's  main  line.  Olvino's  duty,  as  alleged, 
was  to  keep  defendant's  main  track  cleared  of  the  dirt  and 
rock  which  fell  from  the  steam  shovel  employed  in  making 
the  excavation.  The  negligence  charged  is,  that  defend- 
ant's servants  and  employes  so  carelessly  and  negligently 
and  with  such  great  force  and  violence  drove  and  struck 
against  the  said  Frank  Olvino,  a  certain  locomotive  with 
cars  attached,  thereby  inflicting  upon  him  such  severe  and 
fatal  wounds  and  injuires,  that  he  then  and  there  died. 

On  the  trial  there  was  a  verdict  and  judgment  for  the 
plaintiff  for  $1,500.00,  and  for  errors  alleged  to  have  been 
committed  preliminary  to  and  during  the  progress  of  the 
trial,  and  for  refusal  of  the  court  below  to  set  aside  the  ver- 
dict and  award  defendant  a  new  trial,  the  defendant  seeks 
a  reversal  of  the  judgment  below. 

Of  the  preliminary  rulings  complained  of,  the  first  is, 
that  the  court  refused  to  continue  the  case  on  motion  of  de- 
fendant, when  called  for  trial,  because  of  the  absence  of  F. 
B.  Enslow,  defendant's  leading  counsel;  and  because  of  the 
absence  of  J.  B.  Thomas,  one  of  its  witnesses ;  and  the  sec- 
ond is,  the  rejection  of  defendant's  special  plea  number 
two  tendered.  The  motion  to  continue  was  supported  by 
the  affidavits  of  said  Enslow  and  R.  M.  Baker,  another  at- 
torney for  the  defendant.  Baker  was  also  cross  examined 
on  the  matter  of  his  affidavit,  and  the  clerk  of  the  court  was 
also  examined  in  relation  to  the  issuance  of  subpoenas  for 
the  witnesses,  and  the  want  of  service  and  return  thereof. 
This  evidence  shows  that  Enslow  was  necessarily  absent 
in  attendance  upon  the  United  States  Circuit  Court  of  Ap- 
peals at  Richmond,  on  the  day  this  case  was  set  for  trial, 
but  that  Baker,  who  assisted  in  the  conduct  of  the  trial 
on  behalf  of  the  defendant,  was  present.  The  record  of 
the  trial  shows  that  Enslow  was  a  member  of  the  well 
known  firm  of  Simms  &  Enslow,  or  Simms,  Enslow,  Fitz- 
patrick  and  Baker,  that  defendant's  special  plea  number 
two  was  signed  by  Alexander  &  Barnhart  and  R.  M.  Baker, 
Attorneys,  and  not  by  either  of  the  other  firms  of  which 
Enslow  was  a  member,  and  that  Mr.  Alexander  was  also 
present  and  assisted  in  the  trial,  and  that  the  defense  was 
conducted  with  skill  and  ability.    In  the  case  of  Rossett  v. 


Sec.  3]  Continuance  169 

Gardner,  3  W.  Va.  531,  relied  upon,  upon  the  question  of  the 
absence  of  counsel,  it  was  shown  that  appellant  had  used 
due  diligence  to  be  prepared  for  trial ;  that  one  of  his  coun- 
sel was  unavoidably  absent,  and  that  the  other,  though 
present  on  a  preceding  day,  was  for  some  cause,  not  ex- 
plained in  the  record,  absent  when  the  cause  was  heard, 
and  the  appellant  was  left  without  the  aid  of  any  coun- 
sel. In  the  present  case  defendant  had  able  counsel  pres- 
ent to  conduct  the  trial.  In  the  case  of  Myers  and  Axtell, 
Receivers,  v.  Trice,  86  Va.  835-841-2,  the  absence  of  leading 
counsel  on  account  of  sickness,  in  connection  with  the  ab- 
sence of  an  important  witness,  not  summoned  by  reason  of 
mistake  in  name,  was  held  good  cause  for  continuance,  and 
denial  of  the  continuance  was,  on  writ  of  error,  held  suffi- 
cient cause  for  a  reversal  of  tlie  judgment.  Several  cases 
are  cited  by  the  Virginia  court  in  support  of  its  ruling,  two 
from  Georgia,  one  United  States  Circuit  Court  decision, 
and  the  case  of  Rhode  Island  v.  Massachusetts,  11  Peters 
226.  In  the  latter  case,  says  the  Virginia  Court,  a  contin- 
uance was  granted  by  the  Supreme  Court  of  the  United 
States  upon  the  ground  that  the  leading  attorney  for  the 
state  of  Rhode  Island  was  ill,  although  the  attorney  general 
of  that  state  was  present.  The  case  was  of  exceptional  im- 
portance says  the  court,  and  that  the  inference  was  that 
the  court  was  influenced  more  by  the  deep  concern  and  the 
high  importance  of  the  case  than  by  any  purpose  to  ex- 
emplify the  rule  in  such  cases.  ''In  all  such  cases,  however," 
says  the  Virginia  court,  *'the  application  should  be  watched 
with  jealousy,  and  the  discretionary  power  of  the  court  ex- 
ercised with  caution;  but  if  there  is  no  sufficient  reason  to 
induce  the  belief  that  the  alleged  ground  of  the  motion  is 
feigned,  a  continuance  should  be  granted,  rather  than  to 
seriously  imperil  the  just  determination  of  the  cause  by 
refusing  it."  This  court  further  says:  "Under  the  pecu- 
liar circumstances  of  the  present  case,  and  especially  in 
view  of  the  very  harsh  ruling  on  the  preceding  motion,  we 
are  clearly  of  opinion  that  the  circuit  court  erred  in  re- 
fusing to  continue  the  case  on  the  ground  of  the  absence 
of  the  leading  counsel  of  the  defendants,  by  reason  of  sick- 
ness." 

With  respect  to  the  absence  of  the  witness  Thomas,  the 
evidence  shows  that  he  was  or  had  been  in  the  emploj^  of  the 


170  Tbial  Peactice  [Chap.  4 

defendant  company,  was  in  fact  the  fireman  on  the  engine 
at  the  time  of  the  killing  of  Olvino;  that  a  subpoena  for 
him  and  another  witness  was  secured  from  the  clerk  only 
six  days  before  the  case  was  called  for  trial  and  sent  to 
the  company's  counsel  at  Huntington;  that  no  return  of 
service  thereof  on  Thomas  was  made,  and  the  testimony  of 
Baker,  counsel  for  defendant  on  cross-examination,  shows 
that  he  sent  the  subpoena  for  Thomas  to  the  company's 
superintendent  requesting  him  to  secure  the  presence  of 
Thomas,  who,  he  was  told,  was  at  Hinton,  and  gave  direc- 
tions that  an  order  be  given  him  on  the  ticket  agent  there 
for  transportation.    He  did  not  know  whether  Thomas  had 
been  served  or  provided  with  transportation.     We  do  not 
think  the  record  shows  due  diligence  on  the  part  of  defend- 
ant to  secure  the  presence  of  Thomas.    Besides  he  was  only 
one  of  the  numerous  witnesses  present  at  the  time  of  the 
killing  of  the  deceased,  including  the  engineer,  and  who  were 
present  and  examined  as  witnesses  on  the  trial  and  gave 
testimony.     Motions  for  continuance    are    generally    ad- 
dressed to  the  sound  discretion  of  the  trial  court.     The 
judgment  of  the  court  thereon  not  being  reviewable   on 
writ  of  error  and  appeal  unless  there  has  been  manifest 
abuse  of  such  discretion.    Mullinax  v.  Waybrig-ht,  33  W.  Va. 
84;  Halstead  v.  Eorton,  38  W.  Va.  727;  State  v.  Lane,  44 
W.  Va.  730.    It  was  not  shown  what  was  proposed  to  be 
proven  by  the  witness.    Where  the  motion  to  continue  is 
based  on  the  absence  of  a  witness  it  must  be  shown  that 
proper  diligence  to  secure  his  presence  has  been  used,  and 
if  there  is  any  ground  to  suspect  that  the  continuance  is 
for  delay,  it  must  appear  what  evidence  the  absent  witness 
is  expected  to  give.     State  v.  Broivn,  62  W.  Va.  546.     In 
Thompkins  v.  Burgess,  2  W.  Va.  187,  and  Dimmey  v.  Wheel- 
ing, etc.,  R.  Co.,  27  W.  Va.  33,  it  is  said  that  on  such  motion 
it  must  be  shown  that  the  same  facts  cannot  be  proved  by 
any  other  witness  in  attendance  and  that  the  party  whose 
witness  is  absent  cannot  proceed  in  the  absence  of  such 
witness.    The  affidavit  of  Baker,  is  that  the  witness  is  mater- 
ial and  that  defendant  cannot  prove  the  same  facts  by  any 
one  else,  as  he  is  informed;  but  on  cross  examination  it  is 
shown  that  he  does  not  know  what  Thomas  will  swear,  ex- 
cept from  his  report.    It  is  not  shown  what  this  report  was. 
U  is  suggested  in  brief  of  counsel,  however,  that  as  Thomas 


Sec.  3]  Continuance  171 

was  fireman  on  the  engine  that  killed  deceased,  he  would 
be  a  material  witness,  he  and  the  engineer  being  the  only 
two  persons  on  the  engine,  and  that  each  seeing  what  oc- 
curred from  different  points  of  view,  this  rendered  Thomas 
a  most  important  witness.  But  other  witnesses  were  pres- 
ent and  gave  testimony  as  to  what  was  seen  and  heard  by 
them  from  their  several  view  points,  including  the  ringing 
of  the  bell  and  the  blowing  of  the  whistle,  and  we  cannot  see 
that  the  defendant  was  greatly  prejudiced  by  the  absence 
of  Thomas.  We  cannot  say  from  this  record  that  there  was 
any  abuse  of  the  discretion  of  the  court  on  the  motion  to 
continue.  We  do  not  think  this  a  parallel  case  to  the  Vir- 
ginia case.  Evidently  the  court  there  was  more  influenced 
by  the  arbitrary  ruling  of  the  trial  court  in  refusing  to  con- 
tinue on  the  ground  of  the  absence  of  an  important  witness 
than  because  of  the  absence  of  counsel. 

Affirmed. 


RANKIN  V.  CALDWELL. 

Supreme  Court  of  Idaho.    1908. 

15  Idaho,  625. 

Stewart,  J.  This  is  an  action  to  recover  possession  of 
two  diamond  rings,  alleged  to  be  of  the  value  of  $250  each. 
The  plaintiff  alleges  that  she  is  the  owner  and  entitled  to  the 
possession  of  said  property.  The  plaintiff  did  not  file  the 
affidavit  provided  for  by  the  statute,  where  immediate  de- 
livery is  claimed.  The  defendant  answers  the  complaint 
and  denies  the  plaintiff's  ownership  and  right  of  possession 
of  said  rings,  and  denies  that  they  are  of  the  value  of  $250 
each,  or  any  greater  sum  than  $125  each.  The  defendant 
admits  that  he  holds  and  detains  said  property  from  the 
possession  of  plaintiff,  but  denies  that  he  does  so  unlaw- 
fully, and  alleges  that  said  rings  were  pledged  to  him  as 
security  by  one  Harry  Noyes,  and  that  such  pledge  was 
made  by  and  with  the  consent  and  approval  of  the  plaintiff. 
The  case  was  set  for  trial  before  a  jury  sometime  prior 
to  February  5,.  1908,  and  when  the  case  was  called  for  trial 


172  Trial,  Practice  [Chap.  4 

on  February  5th,  the  defendant  made  a  motion  for  a  con- 
tinuance and  filed  his  affidavit  made  on  that  day  in  which 
he  swears  "that  he  cannot  safely  go  to  trial  at  this  term 
of  the  above-entitled  court  on  account  of  the  absence  of  his 
attorney,  John  Green,  who  is  confined  to  his  bed  with  ill- 
ness in  Culdesac,  Nez  Perce  county,  state  of  Idaho,  and 
conduct  the  trial  of  this  case ;  that  affiant  did  not  know  that 
the  said  Green  would  be  unable  to  appear  in  court  at  the 
time  this  case  was  set  for  trial  until  yesterday  morning, 
the  4th  day  of  February,  A.  D.  1908;  that  affiant  has  con- 
sulted no  other  attorney  regarding  this  case,  and  had  re- 
tained no  other  attorney,  and  it  would  be  an  injustice  to 
affiant  to  compel  him  to  go  to  trial  without  the  presence  of 
his  attorney. 

"That  affiant  expects  to  have  present  for  the  purpose  of 
testifying  in  this  cause  at  the  trial  of  the  same  one  George 
Martin,  who  is  the  cashier  of  the  Bank  of  Culdesac,  and 
who  is  confined  to  his  bed  with  illness,  and  unable  to  ap- 
pear to  attend  the  trial  of  this  cause;  that  affiant  did  not 
have  a  subpoena  issued  for  the  said  George  Martin,  for  the 
said  Martin  agreed  and  intended  to  attend  upon  the  trial 
of  this  cause,  and  would  have  been  present  had  he  not  been 
detained  on  account  of  illness." 

The  affidavit  then  continues  to  set  forth  what  the  affiant 
claims  Martin  will  testify  to  if  present  at  the  trial.  An 
affidavit  of  Dr.  E.  L.  Burke  was  also  filed,  to  the  effect  that 
Mr.  Green  was  suffering  with  la  grippe,  confined  to  his  bed 
under  the  instruction  of  the  physician,  and  that  it  would  be 
injurious  and  probably  fatal  for  him  to  leave  his  bed  or 
make  any  effort  whatever  to  appear  as  an  attorney  on  the 
5th  day  of  February.  The  affidavit  of  Mr.  Green,  made 
February  4th,  was  also  filed  to  the  effect  that  he  was  at- 
torney for  the  defendant  in  the  above  action,  and  that  the 
defendant  had  consulted  no  other  attorney  concerning  his 
interest  in  said  action,  and  that  he  was  unable  to  appear  in 
the  district  court  on  the  5th  as  attorney  for  the  defendant, 
because  of  illness. 

The  district  court  overruled  the  motion  for  a  continuance, 
and  tlie  cause  went  to  trial  before  a  jury  and  a  verdict  re- 
turned for  the  plaintiff,  assessing  the  damages  at  $450.  A 
motion  for  a  new  trial  was  made  and  overruled,  and  this 
appeal  is  from  the  judgment  and  from  the  order  overruling 


Sec.  3]  Continuance  173 

the  motion  for  a  new  trial.  The  first  error  assigned  is, 
that  the  trial  court  erred  in  overruling  the  motion  for  a 
continuance.  It  will  be  observed  from  an  examination  of 
the  affidavit  that  the  continuance  was  asked  for  upon  two 
grounds :  first,  because  of  absence  of  counsel  on  account  of 
illness;  second,  on  account  of  absence  of  witness,  Ijecause 
of  illness  and  failure  to  attend.  The  affidavit  shows  that 
John  Green,  defendant's  counsel,  was  ill  and  unable  to  at- 
tend the  trial  of  said  cause ;  that  defendant  had  knowledge 
of  this  fact  on  the  4th  day  of  February,  the  day  prior  to  the 
day  upon  which  the  cause  was  set  for  trial.  The  defend- 
ant made  no  effort  to  secure  other  counsel  and  there  is  no 
showing  in  the  affidavit  that  the  case  was  in  any  way  com- 
plicated or  difficult,  or  that  other  counsel  could  not  have 
been  procured  who  could  have  familiarized  himself  with 
and  properly  tried  said  case  on  the  5th.  In  this  respect  the 
affidavit  is  insufficient.  A  party  to  a  suit  cannot  have  a  post- 
ponement of  the  trial  upon  the  ground  of  illness  of  coun- 
sel, without  showing  diligence  on  the  part  of  such  applicant 
to  secure  other  counsel  or  to  consult  other  counsel  as  to  the 
merits  of  the  case  for  the  purpose  of  ascertaining  whether 
or  not  other  counsel  can  be  secured  who  can  properly  try 
said  case.  If  the  mere  fact  that  counsel  for  the  applicant 
is  ill  is  sufficient  to  secure  a  continuance,  then  it  might  be 
possible  to  prevent  a  cause  from  ever  reaching  trial.  The 
applicant  must  show  diligence  on  his  part  in  supplying  the 
place  of  the  counsel  who  is  ill,  or  show  some  reason  why  it 
is  not  done.  A  motion  for  a  continuance  is  addressed  to  the 
sound  discretion  of  the  trial  court,  and  his  ruling  thereon 
will  not  be  disturbed  on  appeal,  unless  it  appears  that  there 
has  been  an  abuse  thereof.  (Herron  v.  Juiy,  1  Ida.  164; 
Lillienthal  v.  Anderson,  1  Ida.  676;  Cox  v.  Northwestern 
Stage  Co.,  1  Ida.  376;  Richardson  v.  Ruddy,  10  Ida.  151,  77 
Pac.  972;  Robertson  v.  Moore,  10  Ida.  115,  77  Pac.  218;  Holt 
V.  Gridley,  7  Ida.  416,  63  Pac.  188;  Reynolds  v.  Corhus,  7 
Ida.  481,  63  Pac.  884.) 

It  is  not  an  abuse  of  the  legal  discretion  vested  in  the 
trial  court  to  deny  an  application  for  a  continuance  upon  the 
sole  ground  that  applicant's  counsel  is  ill,  where  no  affidavit 
of  merits  is  filed  showing  that  the  applicant  has  a  meritor- 
ious cause  or  defense  and  that  other  counsel  cannot  be  pro- 
cured who  are  able  to  try  said  case.    {Condon  v.  Brockway, 


174  Trial  Practice  [Chap.  4 

157  111.  90,  41  N.  E.  634;  Earloe  v.  Lambie,  132  Cal.  133,  64 
Pac.  88;  Berentz  v.  Belmont  Oil  Co.,  148  Cal.  577,  133  Am. 
St.  Rep.  308,  84  Pac.  47;  Thompson  v.  Thornton,  41  Cal. 
626.)  As  to  the  sufficiency  of  the  affidavit  on  account  of  the 
absence  of  a  witness,  the  affidavit  as  to  the  absence  of  the 
witness  Martin  does  not  show  the  facts  upon  which  the 
statement  is  made  that  the  witness  is  ill  and  unable  to  at- 
tend said  trial.  The  affidavit  does  not  allege  that  the  appli- 
cant knows  this  as  a  fact,  or  disclose  from  whom  he  pro- 
cured the  information,  or  that  he  himself  or  the  person 
from  whom  he  procured  the  information  was  qualified  to 
say  that  such  witness  was  too  ill  to  attend  said  trial.  It 
does  not  disclose  whether  the  statement  is  made  upon  per- 
sonal knowledge  of  the  affiant  or  upon  information.  Nei- 
ther does  the  affidavit  show  any  diligence  exercised  by  the 
applicant  to  procure  the  attendance  of  the  witness.  The 
fact  that  the  witness  agreed  to  be  present  is  not  such  a 
showing  of  diligence  as  will  be  sufficient  to  secure  a  con- 
tinuance for  failure  of  such  witness  to  attend.  A  party  is 
not  entitled  to  a  continuance  of  a  cause  without  showing 
due  diligence  and  the  use  of  legal  means  to  procure  the 
desired  evidence.  A  bare  request  to  furnish  the  evidence  is 
in  no  sense  a  compliance  with  the  requirements  of  the  law. 
{Alvord  V.  United  States,  1  Ida.  585;  Kuhland  v.  Sedgwick, 
17  Cal.  123;  Lightner  v.  Menzel,  35  Cal.  452.)  For  these 
reasons  the  court  committed  no  error  in  overruling  the 

motion  for  a  continuance. 

********** 

We  find  no  error  in  the  record  in  this  case,  and  the  judg- 
ment will  be  affirmed.    Costs  awarded  to  respondent. 
AiLSHiE,  C.  J.,  and  Sullivan,  J.,  concur. 


Sec.  4]  Continuance  175 

Section  4.    Absence  of  Party. 

JAFFE  V.  LILIENTHAL. 

Supreme  Court  of  California.    1894. 

101  California,  175. 

Haynes,  C. — On  the  21st  of  December,  1891,  this  cause 
was  set  for  trial  for  January  6,  1892.  On  that  day  plaint- 
iff's attorney  moved  for  a  continuance  upon  affidavits  of  the 
plaintiff  and  his  physician  showing  in  substance  that  the 
plaintiff,  who  then  and  for  about  a  year  prior  thereto  re- 
sided in  Seattle,  Washington,  was  confined  to  his  room  by 
an  attack  of  acute  rheumatism  to  which  he  was  subject,  and 
was  wholly  unable  to  move  or  leave  his  room,  and  in  the 
opinion  of  his  physician  would  not  be  able  to  leave  his  room 
in  less  than  two  months.  The  affidavit  of  plaintiff  further 
stated  that  his  presence  at  the  trial  was  indispensably  nec- 
essary; that  he  was  the  only  person  who  knew  the  where- 
abouts of  the  witnesses  necessary  to  be  called  on  his  behalf; 
that  their  names  had  not  been  communicated  to  his  attor- 
ney, nor  the  matters  to  which  they  would  testify.  D.  M, 
Delmas,  Esq.,  attorney  for  plaintiff,  also  presented  his  own 
affidavit  that  plaintiff's  presence  was  necessary,  that  he  did 
not  know  the  names  of  plaintiff's  witnesses,  nor  the  details 
of  the  case. 

No  counter-affidavits  were  presented.  The  continuance 
was  denied,  plaintiff's  attorney  left  the  courtroom,  and  a 
judgment  was  entered  for  nonappearance  of  the  plaintiff, 
and  the  plaintiff  appeals. 

"VVe  think  the  court  erred  in  not  granting  a  continuance. 

Respondent  suggests  that  it  does  not  appear  that  plaintiff 
was  a  witness,  nor  that  his  attorney  used  any  diligence  to 
prepare  for  the  trial. 

It  seldom  happens  that  a  trial  can  be  properly  liad  in  thS 
absence  of  the  plaintiff,  even  where  he  is  disqualified  as  a 
witness,  especially  where  it  is  to  be  tried  upon  oral  testi- 
mony. With  all  the  care  that  can  reasonably  be  taken' by 
both  attorney  and  client,  some  matter  of  vital  importance 
is  liable  to  be  overlooked  by  them  until  the  trial  calls  it  to 
the  recollection  of  the  plaintiff,  and  this  is  especially  true 
in  relation  to  matters  purely  in  rebuttal.     It  is  the  right 


176  Trial  Practice  [Chap.  4 

of  parties  tb  be  present  at  the  trial  of  their  cases.  This 
right  may  be  waived,  and  should  be  held  to  be  waived 
where  the  absence  of  the  party  is  voluntary  and  under  cir- 
cumstances which  ought  not  to  induce  a  reasonable  man 
having  a  due  regard  for  the  rights  and  interests  of  others 
and  of  the  public,  all  of  whom  are  interested  in  the  due 
and  prompt  administration  of  justice,  to  absent  himself. 

So  far  as  the  want  of  preparation  on  the  part  of  the  at- 
torney is  concerned,  the  most  laborious  and  painstaking 
preparation  on  his  part  would  not  have  prevented  the  sick- 
ness and  absence  of  his  client;  nor  does  it  appear  that  if 
the  plaintiff  had  not  been  sick  the  necessary  preparation 
could  not  have  been  made  after  the  case  was  set  for  trial. 

Eespondent  further  contends  that  the  affidavits  do  not 
show  the  materiality  of  the  evidence  expected  to  be  ob- 
tained. 

The  application  for  continuance  was  not  made  under  sec- 
tion 595  of  the  Code  of  Civil  Procedure,  but  under  section 
594,  which  authorizes  the  court  ''for  good  cause"  to  post- 
pone the  trial  in  the  absence  of  a  party.  The  consequences 
of  a  dismissal  of  an  action  because  of  the  absence  of  a 
plaintiff  should  always  be  considered,  especially  where  any 
reasonable  excuse  is  shown  for  his  absence,  as  where  a  plea 
of  the  statute  of  limitations  could  be  interposed  to  a  new 
action.  In  such  case  the  dismissal  is  the  absolute  destruc- 
tion of  the  plaintiff's  right,  and  so  serious  a  penalty  should 
not  be  imposed  unless  the  due  administration  of  justice 
clearly  requires  it. 

The  judgment  appealed  from  should  be  reversed. 

Vanclief^  C,  and  Searls,  C,  concurred. 

For  the  reasons  given  in  the  foregoing  opinion,  the  judg- 
ment appealed  from  is  reversed. 

Fitzgerald,  J.,  De  Haven,  J. 

McFarland,  J. — I  concur  in  the  judgment. 


Sec.  5]  Continuance  177 

Section  5.    Withdrawal  of  Jurob. 

USBORNE  V.  STEPHENSON. 

Supreme  Court  of  Oregon.    1899. 

36  Oregon,  328. 

*  *  *  On  the  day  set  for  the  trial,  but  before  the  jury 
was  called,  the  plaintiff  moved  for  a  continuance  on  account 
of  the  absence  of  material  testimony;  basing  his  motion 
upon  an  affidavit  of  his  counsel  to  the  effect  that  he  could 
not  safely  proceed  to  trial  without  the  depositions  of  several 
residents  of  London.  The  motion  being  denied,  a  jury  was 
impaneled  and  sworn;  but,  before  any  evidence  had  been 
given,  the  plaintiff  filed  a  motion  for  permission  to  with- 
draw a  juror,  based  upon  an  affidavit  of  his  counsel  sub- 
stantially the  same  as  the  one  filed  in  support  of  the  motion 
for  a  continuance,  except  that  it  contained  a  statement  to 
the  effect  that  the  cause  had  been  set  down  for  hearing 
in  violation  of  a  verbal  understanding  and  agreement  with 
counsel  for  defendants,  which,  however,  was  denied  by  a 
counter  affidavit.  This  motion  was  likewise  denied,  and  the 
cause  proceeded  to  trial,  resulting  in  a  judgment  in  favor 
of  defendants  for  the  sum  of  $537. Oi,  from  which  the  plain- 
tiff appeals,  assigning  as  error  the  overruling  of  his  mofion 
to  withdraw  a  juror,  and  certain  instructions  given  to  the 
jury. 

Ajjirmed. 

Mr.  Justice  Bean,  after  stating  the  facts,  delivered  the 
opinion  of  the  court. 

1.  This  is  the  first  attempt,  so  far  as  we  are  advised, 
to  invoke  in  this  state  the  practice  of  withdrawing  a  juror. 
There  is  but  little  satisfactory  information  to  be  obtained 
from  the  books  in  regard  to  the  ancient  practice,  which 
used  to  be  resorted  to  when  a  party  was  taken  by  surprise 
on  a  trial,  of  withdrawing  a  juror,  and  thus  causing  a  mis- 
trial, and,  of  necessity,  a  postponement  of  the  case.  It  was 
originally  confined  to  criminal  cases,  and  seems  to  have 
been  adopted  for  the  purpose  of  avoiding  a  rule  which  once 
obtained,  based  largely  upon  a  dictum  of  Lord  Coke,  that  a 
jury  sworn  and  charged  in  any  criminal  case  could  not  be 
T.  p.— 12 


178  Tbial  Pkacticb  [Chap.  4 

discharged  without  giving  a  verdict.  To  escape  the  effect 
of  this  rule,  and  yet  apparently  observe  it  to  the  letter,  the 
courts  resorted  to  the  fiction  of  directing  the  clerk  to  call  a 
juror  out  of  the  box,  when  it  appeared  that  the  prosecution 
was  taken  by  surprise  on  the  trial,  whereupon  the  prosecu- 
tion objected,  or  was  supposed  to  object,  to  proceeding 
with  the  eleven  jurors,  and  the  trial  went  over  for  the  term: 
2  Hawk,  P.  C.  619;  2  Hale,  P.  C.  294;  Wedderburn's  Case, 
Fost.  22;  People  v.  Olcott,  2  Johns.  Cas.  301  (1  Am.  Dec. 
168);  United  States  v.  CooUdge,  2  Gall.  363  (Fed.  Cas. 
No.  14,858).  It  was  nothing  more,  however,  than  a  means 
of  obtaining  a  continuance  or  postponement  of  the  trial 
after  the  jury  had  been  impaneled  and  sworn.  At  first  it 
was  thought  this  could  be  done  only  by  the  court  ordering 
the  discharge  of  one  of  the  jurors,  and  then  holding  that, 
as  the  case  could  not  be  tried  before  the  remaining  eleven, 
it  must  be  continued.  But  after  the  doctrine  of  Lord  Coke 
had  been  repudiated,  and  it  became  the  settled  rule  that 
it  was  within  the  power  of  the  court,  in  a  proper  case,  to 
discharge  the  jury  after  it  had  been  impaneled  and  sworn, 
and  continue  the  cause,  the  device  of  withdrawing  a  juror 
seems  to  have  become  practically  obsolete,  and  but  little, 
if  any,  reference  to  it  as  a  substantive  practice  is  to  be 
thereafter  found  in  the  books.  That  it  ever  prevailed  at 
common  law  in  civil  cases  is  very  doubtful.  No  case  has 
come  under  our  observation  in  which  it  was  resorted  to  in 
England.  Indeed,  the  only  reference  we  have  been  able 
to  find  to  the  question  in  the  early  authorities  is  a  note  to 
Chedwick  v.  Hughes,  Carth.  464,  in  which  it  is  stated  that 
Lord  Chief  Justice  Holt,  in  a  case  of  perjury  tried  before 
him,  said  that  it  was  the  opinion  of  all  the  judges  of  Eng- 
land, upon  debate  between  them,  that  in  civil  cases  a  juror 
cannot  be  withdrawn  but  by  consent  of  all  parties.  And 
while  the  authority  of  this  note  underwent  a  critical  exami- 
nation in  the  subsequent  case  of  Sir  John  Wedderhurn, 
Fost.  28,  from  which  its  authority  is  rendered  rather  ques- 
tionable, it  seems  to  be  the  only  reference  to  the  practice  in 
civil  cases.  It  was  early  ruled,  however,  in  this  country, 
by  the  courts  of  New  York,  after  some  hesitation,  that  a 
court  may  allow  a  juror  to  be  withdrawn  in  a  civil  case, 
when  necessary  to  save  the  plaintiff  from  the  consequence 
of  a  fatal  mistake  in  his  testimony:    People  v.  Judges  of 


Sec.  5]  Continuance  179 

'Bew  York,  8  Cow,  127.  And  we  believe  it  is  still  regarded 
as  a  proper  practice  in  that  state,  and  is  open  to  either 
party:  Bishop,  Code  PI.  sec.  428;  Dillon  v.  Cockcroft,  90 
N.  Y.  649;  Messenger  v.  Fourth  Nat.  Bank,  48  How.  Prac. 
542.  But,  so  far  as  we  have  been  able  to  ascertain,  it  does 
not  prevail  elsewhere  in  this  country;  the  same  result  being 
accomiDlished  by  a  direct  application  to  the  court  for  a  post- 
ponement of  the  trial:  4  Enc.  PI.  &  Prac.  863.  We  are 
therefore  of  the  opinion  that  the  motion  was  properly 
denied  on  the  ground  that  no  such  jDractice  prevails  in  this 
state. 

2.  But,  however  that  may  be,  whatever  authorities  there 
are  on  the  subject  all  agree  that  the  practice  can  be  re- 
sorted to  only  when  a  party  finds  himself  taken  by  surprise 
on  the  trial,  and  when  further  proceeding  therewith  would 
be  productive  of  great  hardship  or  manifest  injustice  to  him. 
Mr.  BishojD,  in  the  section  of  his  work  on  Code  Pleading  al- 
ready recited,  in  speaking  of  the  New  York  practice,  says : 
'*  Instead  of  submitting  to  a  nonsuit,  the  plaintiff,  if  he  finds 
himself  taken  by  surprise  on  the  tiral, — as  by  the  absence 
of  a  witness  who  has  been  in  attendance,  or  by  the  unex- 
pected presentation  of  evidence  by  his  adversary  which  he 
is  not  prepared  to  meet,  or  by  any  accident  which  might 
render  the  further  progress  of  the  trial  disastrous  and  un- 
fair to  him, — may  ask  the  court  to  withdraw  a  juror.  The 
result  of  this  application,  if  granted,  will  be  to  produce  a 
mistrial;  and  the  court  may  then  continue  the  pending  ac- 
tion, and  set  the  trial  over  to  a  future  da}^,  when  the  plaintiff 
may  come  properly  prepared  to  try  the  case  afresh. ' '  With- 
in this  rule,  the  plaintiff's  motion  was  likewise  properly 
denied,  because  it  is  not  based  upon  anything  occurring  at 
the  trial,  but  upon  matters  happening  long  prior  thereto, 
and  which  could  be,  and  were,  properly  submitted  to  the 
court  in  support  of  the  motion  for  a  continuance  made  be- 
fore the  jury  was  empaneled. 

********** 

This  disposes  of  the  questions  made  on  the  appeal,  and, 
there  being  no  error  in  the  record,  we  have  no  alternative 
but  to  affirm  the  judgment. 

Affirmed.^ 

^The  practice  of  withdrawing  a  juror  in  civil  causes  is  familiar  in  several 
states.    Eosengarten  v.  Central  Railroad  Company  of  New  Jersey,  (1903)  69  N. 


ISO  Trial  Peactice  [Chap.  4 

J.  L.  220,  54  Atl.  564;  McKahan  v.  Baltimore  &  Ohio  R.  R.  Co.,  (1909)  223 
Pa.  St.  1,  72  Atl.  251;  Smith  v.  Chicago  Junction  Ry.  Co.,  (1906)  127  111, 
App.  89;  Crane  v.  Blaekman,  (1901)  100  111.  App.  565;  Cattano  v.  Metropolitan 
Street  Ry.  Co.,  (1903)  173  N.  Y.  565,  66  N.  E.  563;  Rawson  v.  Silo,  (1905) 
105  N.  Y.  App.  Div.  278,  93  N.  Y.  Suppl.  416. 

In  Planer  v.  Smith,  (1876)  40  Wis.  31,  the  court  said:  "The  power  of  the 
circuit  court,  in  a  proper  case,  to  permit  a  juror  to  be  withdrawn,  or  to  order  a 
nonsuit,  is  undoubted;  but  there  is  no  necessary  connection  between  the  two 
processes.  The  withdrawal  of  a  juror  operates  to  continue  the  cause,  and  does 
not  of  itself  entitle  the  defendant  to  a  judgment  of  any  kind.  If  a  nonsuit 
be  properly  granted,  the  withdrawal  of  a  juror  as  preliminary  thereto  is  en- 
tirely superfluous  and  harmless.  But  if  judgment  of  nonsuit  be  rendered 
merely  because  a  juror  has  been  withdrawn,  such  judgment  is  founded  upon  a 
misapprehension  of  the  legal  effect  of  withdrawing  a  juror,  and  is  erroneous." 


Section  6.    Teems. 

MAUND  V.  LOEB. 

Supreme  Court  of  Alabama.    1888. 

87  Alabama,  374. 

Clopton,  J.  The  continuance  of  a  case  is  in  the  discre- 
tion of  the  court,  and  such  terms  may  be  imposed,  under  the 
rule  of  iDractice,  as  to  the  court  may  seem  proper.  At  the 
Fall  term,  1888,  of  the  Circuit  Court,  defendant  obtained 
a  continuance,  upon  payment  of  all  the  costs  as  a  condition 
precedent,  to  be  paid  in  ninety  days,  or  judgment  to  go 
against  him  at  the  next  term.  The  costs  were  not  paid  until 
the  first  day  of  the  next  term,  and  after  the  case  was  called 
for  trial,  which  was  more  than  ninety  days  from  the  time 
of  the  order.  Defendant  having  applied  for,  obtained,  and 
accepted  the  continuance,  we  must  infer  that  he  consented 
to  the  terms  upon  which  it  was  granted.  It  was  no  excuse, 
that  an  itemized  bill  of  costs  had  not  been  furnished,  when 
it  is  not  shown  that  defendant  otfered  to  pay  the  costs,  or 
applied  for  such  bill;  and  the  court  was  not  bound  to  ac- 
cept payment  after  the  expiration  of  the  prescribed  time, 
as  a  compliance  with  the  condition  upon  which  the  con- 
tinuance was  obtained.  The  court  was  authorized  to  render 
judgment  nil  dicit  against  defendant.  Waller  v.  Sultz- 
lacher,  38  Ala.  318. 

Afirmed. 


CHAPTER  V. 
THE  JURY. 

Section  1.    Eight  to  a  Juey  Trial. 

LEE  V.  CONRAN. 
Supreme  Court  of  Missouri.    1908. 

213  Missouri,  404. 

Woodson,  J.  — This  suit  is  based  upon  section  650,  Ee- 
vised  Statutes  1899,  to  determine  and  quiet  title  to  the  lands 

described  in  the  petition. 

********** 

1.  The  first  insistence  of  appellant  is  that  the  action  of 
the  trial  court  in  refusing  him  a  trial  by  jury  was  error. 

So  far  as  I  am  aware,  this  court  has  never  jDassed  directly 
upon  the  question  as  to  whether  or  not  the  parties  to  a  suit 
based  upon  section  650,  Revised  Statutes  1899,  are  entitled 
to  a  jury. 

In  order  to  properly  determine  that  question  we  must 
first  ascertain  the  nature  of  the  issues  joined  and  the  rem- 
edy the  parties  are  entitled  to  under  the  pleadings.  If 
the  issues  joined  entitled  the  parties  to  an  ordinary  judg- 
ment at  law,  then,  under  the  Constitution  and  the  laws  of 
the  State,  the  parties  are  entitled  to  a  trial  by  a  jury;  but 
if  the  issues  tendered  are  equitable  in  their  nature  and 
call  for  equitable  relief,  then  the  cause  is  triable  before  the 
chancellor. 

Section  28  of  article  2  of  the  Constitution  of  1875  pro- 
vides that  "The  right  of  trial  by  jury,  as  heretofore  en- 
joyed, shall  remain  inviolate."  This  court,  in  the  case  of 
State  V.  Bockstruck,  136  Mo.  1.  c.  358,  held  that  the  constitu- 
tional guaranty  of  "the  right  of  trial  by  jury  as  hereto- 
fore enjoyed"  has  reference  to  the  status  of  that  right  as 
it  existed  at  the  time  of  the  adoption  of  the  Constitution. 
And  this  court,  in  the  case  of  State  ex  rel.  v.  Withrow,  133 

181 


182  Trial  Practice  [Chap.  5 

Mo.  1.  c.  519,  held  that  said  section  28  ''means  that  all  the 
substantial  incidents  and  consequences  which  pertained  to 
the  right  of  trial  by  jury  are  beyond  the  reach  of  hostile 
legislation,  and  are  preserved  in  their  ancient  substantial 
extent  as  existed  at  common  law." 

In  order  to  determine  whether  the  case  at  bar  comes 
within  the  meaning  of  that  section  of  the  Constitution, 
as  interpreted  by  those  adjudications,  we  must  first  de- 
termine what  the  issue  tendered  by  the  pleadings  is,  and, 
after  doing  so,  we  must  then  ascertain  how  that  issue  was 
triable  before  the  adoption  of  that  constitutional  provis- 
ion ;  if  by  jury,  then  either  party  is  entitled  to  a  trial  of  that 
issue  by  a  jury  regardless  of  any  statutory  provision;  but 
if  it  was  not  triable  by  jury  prior  to  that  time,  then  the 
Constitution  does  not  govern,  and  we  would  then  look  to  the 
statutes  and  the  common  law  for  a  rule  by  which  to  solve 
the  question. 

We  will  first  determine  the  nature  of  the  issue  presented 
by  the  pleadings.     The  petition  charges  that  the  plaintiff 
is  the  owner  of  the  land  described  therein,  and  that  de- 
fendant claims  some  interest  or  estate  therein,  the  nature 
of  which  is  unknown  to  plaintiff,  except  that  it  is  adverse 
and  prejudicial  to  his  interests.     The  answer  denies  the 
allegations  of  plaintiff's  ownership,  and  alleges  that  the 
lands  are  accretions;    that  plaintiff  claims  that  they  ac- 
creted to  his  patent  land  on  the  Missouri  side  of  the  Missis- 
sippi river;  that  he  claims  and  charges  the  fact  to  be  that 
they  are  accretions  to  an  island  formed  and  located  in  the 
Mississippi  river ;  that  under  an  act  approved  April  8, 1895, 
the  title  to  such  lands  vested  in  the  county  for  the  use  of 
the  public  schools ;  and  that  he  purchased  them  from  the 
county  of  New  Madrid.    When  reduced  to  its  final  analysis, 
the  issue  is  plainly  one  of  accretion — that  is,  was  the  land 
in  question  accreted  and  added  to  the  shore  line  of  plaint- 
iff's land,  by  gradual  and  imperceptible  alluvial  deposits, 
or  was  it  added  by  that  means  to  the  lands  of  the  island? 
Tf  to  the  former,  then  the  title  is  in  plaintiff  as  charged 
in  bis  petition;  but  if  to  tlie  latter,  tlion  they  belong  to  the 
defendant.     That  is  the  sole  and  only  question  presented 
by  the  pleadings;  and  that  was  the  finding  and  judgment 
of  tlie  trial  court. 

Having  rk'teiniined  that  the  issue  is  one  of  accertion,  we 


Aw 


w  I 


Sec.  1]  The  Juey  183 

will  DOW  ascertain  in  what  manner  that  issue  was  triable 
at  common  law  and  under  the  statute  of  this  State  prior 
to  the  adoption  of  the  constitutional  provision.  I  have  been 
unable  to  find  a  case  in  this  State  where  that  precise  ques- 
tion has  been  decided,  yet  by  an  examination  of  numerous 
cases,  which  fill  our  reports,  involving  the  question  of  ac- 
cretion, I  find  that  they  were  invariably  tried  before  a  jury, 
except  in  a  few  cases  where  a  jury  was  waived.  In  addi- 
tion to  that,  I  might  add  that  during  the  thirty  years  I 
have  been  practicing  law  and  occupying  the  bench,  I  have 
never  seen  or  heard  of  a  case  in  which  it  was  contended  that 
the  question  of  accretion  was  not  triable  by  a  jury.  Clearly 
that  was  the  practice  prior  to  the  passage  of  section  650, 
Kevised  Statutes  1899,  which  was  enacted  in  the  year  1897. 
All  suits  in  this  State  prior  to  that  enactment  involving 
questions  of  accretion  were  possessory  actions,  and  were 
for  the  recovery  of  specific  real  property.  In  fact,  without 
that  section,  I  know  of  no  way  in  which  the  question  of  ac- 
cretion could  be  tried,  except  by  ejectment,  which  has  al- 
ways been  triable  by  jury,  excepting,  of  course,  those  cases 
where  the  answer  set  up  an  equitable  defense  and  crossbill 
and  asked  for  affirmative  relief,  which  were  and  are  triable 
before  the  chancellor  without  the  aid  of  a  jury.  If  it  be 
true  that  prior  to  the  adoption  of  the  constitutional  pro- 
vision mentioned  the  question  of  accretion  was  triable  alone 
in  some  action  involving  the  recovery  of  the  specific  land 
accreted,  then  under  the  express  provisions  of  section  691, 
Kevised  Statutes  1899,  which  was  enacted  long  prior  to  the 
adoption  of  the  Constitution  of  1875,  the  issue  was  triable 
by  a  jury.  That  section  of  the  statute  provides  that,  ''An 
issue  of  fact  in  an  action  for  the  recovery  *  *  *  of 
specific  real  or  personal  property  must  be  tried  by  a  jury," 
etc. 

From  these  observations  it  seems  to  be  clear  that  the 
question  of  title  by  accretion  was  one  triable  by  a  jury  prior 
to  the  adoption  of  said  section  28  of  the  Constitution;  and, 
consequently,  in  obedience  to  its  mandate,  any  action  in- 
volving that  issue  must  still  be  triable  by  a  jury  regardless 
of  any  subsequent  legislation  upon  the  subject. 

We  are,  therefore,  of  the  opinion  the  court  erred  in  re- 
fusing defendant  a  trial  by  a  jury. 


184  Trial  Peactice  [Chap.  5 

We  are,  therefore,  of  the  opinion  that  the  judgment 
shoiild  be  reversed  and  the  canse  remanded  for  a  new  trial. 
It  is  so  ordered. 

AU  concur,  except  Valliant,  P.  J.,  absent. 


Section  2.    Wai\t:r  of  Jury. 
SCHUMACHER  V.  CRANE-CHURCHILL  COMPANY. 

Supreme  Court  of  Nebraska.    1902. 
66  Nebraska,  440. 

Pound,  C. 

Although  a  number  of  difficult  and  interesting  questions 
were  argued,  we  need  only  consider  the  assignment  that  the 
court  erred  in  denying  the  plaintiff  a  jury  trial.  The  action 
is  in  ejectment.  After  the  defendant  had  answered,  plaint- 
iff moved  that  the  cause  be  transferred  to  the  equity  docket, 
for  the  reason  that  certain  equitable  defenses  were  set  up. 
This  motion  was  granted,  the  cause  was  transferred,  and 
at  the  May  term,  1900,  the  whole  case  was  tried  to  the 
court,  without  objection,  and  a  judgment  rendered.  At 
the  same  term  this  judgment  was  vacated  and  the  cause  re- 
submitted, without  further  trial,  after  which  a  new  judg- 
ment was  entered.  Thereupon  the  plaintiff  moved  for  a 
new  trial  under  section  630,  Code  of  Civil  Procedure,  and 
an  order  was  entered,  pursuant  to  said  section,  sus- 
taining the  motion  and  continuing  tlie  cause  to  the  next 
term.  At  the  February  term,  1901,  as  the  cause  was  com- 
ing on  for  trial,  tlie  plaintiff  filed  a  written  motion  or  de- 
mand that  a  jury  pass  upon  the  issues  of  a  legal  nature, 
namely,  whether  he  had  a  legal  estate  in  the  premises  in 
controversy  and  was  entitled  to  possession  thereof.  The 
motion  was  overruled,  and  the  request  was  denied,  to  which 
the  plaintiff  excepted.  Thereafter,  in  due  course,  the  whole 
cause  was  tried  to  the  court,  over  plaintiff's  objection,  and 
findings  and  judgment  were  entered,  from  which  he  pro- 
secutes error. 

We  are  satisfied  that  the  order  transferring  the  cause  to 


Sec.  2]  The  Juky  185 

the  equity  docket  because  of  the  equitable  defenses  set  up  in 
the  answer  did  not  preclude  the  party  who  procured  the 
order  from  demanding  that  the  purely  legal  issues  be  tried 
by  jury,  if  his  request  for  a  jury  trial  was  timely  and  was 
insisted  upon.  It  has  been  decided  that  an  order  transfer- 
ring a  cause  to  the  equity  docket  is  not  an  adjudication 
that  the  parties  are  not  entitled  to  a  jury  trial,  and  that 
if  demand  is  made  prior  to  the  time  the  cause  is  called  for 
trial,  it  is  error  to  deny  a  jury.  Lett  v.  Hammond,  59  Nebr. 
339.  In  that  case,  the  cause  was  transferred  at  the  instance 
of  one  party,  while  the  other  demanded  a  jury.  But  the 
distinction  would  not  be  material  unless  it  could  be  said 
that  the  application  to  have  the  cause  transferred  was  an 
assertion  that  there  was  nothing  for  a  jury  to  trj^,  and  es- 
topped the  moving  party  from  assuming  a  contrary  posi- 
tion subsequently.  This  car  not  be  true,  for  the  same  rea- 
son that  the  order  transferring  the  cause  is  not  a  decision 
whether  the  parties  are  entitled  to  a  jury.  The  whole  case 
is  not  of  necessity  triable  to  the  court  without  a  jury  be- 
cause there  are  incidental  issues  which  are  equitable  in 
their  nature.  Lett  v.  Hammond,  supra;  Yager  v.  Exchange 
Nat.  Bank,  52  Nebr.  321.  By  asking  for  the  transfer, 
plaintiff  merely  asserted  that  there  were  equitable  issues 
proper  for  the  court  to  decide.  He  did  not  assert  that  there 
was  nothing  for  a  jury.  Under  a  practice  not  unlike  ours, 
it  has  been  held  more  than  once  that  consent  that  a  case 
in  which  the  facts  require  both  equitable  and  legal  relief 
should  be  placed  on  the  equity  docket  for  trial  does  not  of 
itself  waive  the  right  to  have  the  issues  requiring  purely 
legal  relief  tried  bv  a  jury.  Wheelock  v.  Lee,  74  N.  Y.  495 : 
Underhill  v.  Manhattan  R.  Co.,  27  Abb.  N.  Cas.  (N.  Y.), 
478;  Eggers  v.  Manhattan  R.  Co.,  27  Abb.  N.  Cas.  (N.  Y.), 
463.  This  must  be  so,  since  the  practice  of  trying  to  the 
court  the  equitable  defenses,  by  reason  of  which  the  right 
to  maintain  the  action  at  law  is  challenged,  and  thereafter, 
if  the  disposition  of  the  equitable  defenses  makes  it  neces- 
sary, trj'ing  the  purely  legal  controversy,  which  is  the  gist 
of  the  case,  to  a  jury,  is  well  settled.  Arguello  v.  E dinger, 
10  Cal.  150;  Sicasey  v.  Adair,  88  Cal.  179,  25  Pac.  Rep. 
l\V^',Basey  v.  Gallagher,  20  Wall.  (U.  S.),  670;  Smith  v. 
Bryce,  17  S.  Car.  538,  544.  AVe  think,  therefore,  that  the 
motion  to  transfer  the  cause  to  the  equity  docket  and  the 


186  Trial  Practice  [Chap.  5 

order  in  accordance  therewith,  did  not,  of  themselves, 
amount  to  waiver  of  a  jury,  especially  as  the  equitable  de- 
fenses in  this  case  were  relatively  of  little  moment.  There 
can  be  no  doubt,  however,  that  the  plaintiff  waived  a  jury 
at  the  first  trial  by  going  to  trial  upon  all  the  issues  with- 
out demanding  a  jury  as  to  any  of  them.  The  statutory 
method  of  waiving  a  jury  is  not  exclusive.  Any  unequivocal 
acts  or  conduct  which  clearly  show  a  willingness  or  intention 
to  forego  the  right,  and  are  so  treated  by  the  trial  court 
without  objection,  will  have  that  effect.  McCarty  v.  Hop- 
kins, 61  Nebr.  550;  Poppitz  v.  German  Ins.  Co.,  85  Minn, 
188,  88  N.  W.  Rep.  438.  AYhen  the  whole  case  was  tried 
and  submitted  to  the  court  without  objection,  the  right  to 
a  jury  was  waived.  Baumann  v.  Franse,  37  Nebr.  807; 
Gregory  v.  Lancaster  County  Bank,  16  Nebr.  411. 

It  becomes  necessary  to  consider  next  whether  waiver  of 
a  jury  at  the  first  trial  operated  to  prevent  the  plaintiff 
from  demanding  one  at  the  second  trial,  after  the  judg- 
ment had  been  set  aside  under  section  630,  Code  of  Civil 
Procedure.  The  waiver  arose  by  implication  only,  and  was 
not  made  by  stipulation  or  agreement  in  open  court.  But 
we  do  not  think  that  circumstance  material.  In  either 
event,  when  a  trial  has  been  had  to  the  court,  pursuant  to 
the  waiver,  the  waiver  has  done  its  work  and  lost  its  force ; 
and  when  subsequently,  for  any  reason,  an  entirely  new 
trial  becomes  necessary,  neither  party  is  precluded  by  the 
action  taken  with  reference  to  the  former  trial,  but  may  de- 
mand a  jury,  or  not,  as  he  is  advised  or  may  elect.  In 
Cochran  v.  Stewart,  66  Minn.  152,  68  N.  W.  Rep.  972,  this 
very  question  was  presented  under  circumstances  not  with- 
out analogy  to  the  case  at  bar.  The  action  was  one  in  eject- 
ment, and  it  was  claimed  that  a  waiver  of  a  jury  at  the 
first  trial  operated  to  waive  a  jury  at  the  second  trial,  ob- 
tainable as  of  course  under  the  statute.  The  court  held 
that  it  was  of  no  force  at  the  second  trial,  saying:  '^ Con- 
ditions may  be  wholly  different  at  the  second  trial  from 
what  they  were  at  the  first.  There  may  be  a  different  judge, 
and  the  jury  to  be  obtained  may  also  be  different  in  char- 
actor.  Then  it  is  hardly  fair  to  presume  that  by  waiving 
a  jury  for  one  trial  the  parties  intended  to  waive  a  jury 
for  any  further  trial  that  may  be  had  under  the  statute, 
and  we  can  not  hold  this  to  be  the  meaning  of  their  agree- 


Sec.  2]  The  Jury  187 

ment."  In  Cross  v.  State,  78  Ala.  430,  the  court  held 
for  substantially  the  same  reasons,  that  such  a  waiver 
should  be  construed,  ordinarily,  to  apply  only  to  the  partic- 
ular trial  with  reference  to  which  it  is  made.  And  it  seems 
to  be  well  settled  that  the  waiver  will  not  prevent  a  de- 
mand for  jury  trial  at  a  second  trial  after  the  cause  has 
been  remanded  from  an  appellate  court.  Hopkins  v.  San- 
ford,  41  Mich.  243,  2  N.  W.  Rep.  39;  Benhoiv  v.  Bobbins, 
72  N.  Car.  422;  Osgood  v.  Skinner,  186  111.  491,  57  N.  E. 
Rep.  1041;  Burnliam  v.  North  Chicago  St.  B.  Co.,  32  C. 
C.  A.  64,  88  Fed.  Rep.  627.  The  many  cases  which  bold 
that  a  waiver  of  jury  trial  may  not  be  withdrawn  are  not 
in  point,  since,  until  the  trial  has  been  had,  it  may  be  said 
plausibly  that  the  parties  are  bound  by  their  election  as  to 
the  form  of  trial.  Moreover,  there  are  well-considered 
authorities  to  the  contrary.  Ferrea  v.  Chabot,  121  Cal.  233, 
53  Pac.  Rep.  689,  1092;  Wittenberg  v.  Onsgard,  78  Minn. 
342,  81  N.  W.  Rep.  14,  47  L.  R.  A.  141;  Broivn  v.  Cheno- 
ivorth,  51  Tex.  469.  Neither  is  our  conclusion  affected  by 
Boslow  v.  Shenberger,  52  Nebr.  164,  QQ  Am.  St.  Rep.  487. 
In  that  case,  there  had  been  a  waiver,  at  a  previous  term, 
and  it  was  presumed  that  the  waiver  was  general,  and  not 
limited  to  the  term  at  which  it  was  made,  in  the  absence  of 
anything  in  the  record  to  the  contrary.  No  trial  had  been 
had,  and  until  there  was  a  trial,  the  waiver  entered  into 
with  reference  thereto  remained  in  force. 

We  recommend  that  the  judgment  be  reversed  and  the 
cause  remanded  for  a  new  trial. 

Bar^stes  and  Oldham,  CO.,  concur. 

By  the  Court:  For  the  reasons  stated  in  the  foregoing 
opinion,  the  judgment  of  the  district  court  is  reversed  and 
the  cause  is  remanded  for  a  new  trial. 

Reversed  and  remanded. 


188  Trial  Practice  [Chap.  5 

Section  3,    Objections  to  the  Panel. 

LOUISVILLE,  HENDERSON  &  ST.  LOUIS  RAILWAY 
COMPANY  V.  SCHWAB. 

Court  of  Appeals  of  Kentucky.     1907, 

127  Kentucky,  82. 

Opinion  of  the  Court  by  Judge  Carroll — Reversing. 

Appellee,  alleging  that  she  was  injured  in  a  collision  be- 
tween a  freight  train  operated  by  appellant  Louisville, 
Henderson  &  St.  Louis  Railway  Company  and  one  of  the 
cars  of  appellant  Louisville  Railway  Company,  caused  by 
the  negligence  of  the  companies,  brought  this  action  to  re- 
cover damages  from  each  of  them.  A  trial  was  had  before 
a  ju-ry,  and  a  verdict  rendered  against  both  appellants. 

The  principal  error  assigned  by  appellants  is  the  failure 
of  the  trial  court  to  sustain  the  motion  made  by  them  at  the 
beginning  of  the  trial  to  discharge  the  panel  for  miscon- 
duct of  the  jury  commissioners  in  failing  to  select  the  jurors 
in  the  manner  prescribed  by  the  statute,  "in  that  the  com- 
missioners did  not  write  the  name  of  each  juror  on  a  slip 
of  paper  and  place  them  in  the  drum  wheel,  but  merely 
checked  off  names  on  the  assessor's  book  and  employed 
others  not  under  oath  to  do  the  really  important  work  of 
writing  off  the  names  and  putting  them  in  the  wheel;  the 
persons  so  employed  not  being  under  the  direct  supervision 
of  the  commissioners,  who  did  not  know  whether  they  did 
the  work  assigned  to  them  right  or  wrong."    *     *    * 

Ky.  St.  1903,  section  2241,  provides  in  part  that  ''the  cir- 
cuit judge  of  each  county  shall  at  the  first  regular  term  of 
circuit  court  therein  after  this  act  takes  effect,  and  annual- 
ly thereafter,  appoint  three  intelligent  and  discreet  house- 
kee})ers  of  the  county,  over  twenty-one  years  of  age,  resid- 
ing in  different  portions  of  the  county,  and  having  no  ac- 
tion in  court  requiring  the  intervention  of  a  jury,  as  jury 
commissioners  for  one  3'ear,  who  shall  be  sworn  in  open 
coiii't  to  faithfully  discharge  their  duty.  They  shall  hold 
their  meetings  in  some  room  to  be  designated  by  the  judge, 
and  while  engaged  in  making  the  list  of  juries  and  select- 
ing the  names,  writing  and  dej^ositing  or  drawing  theit 


Sec.  3]  The  Jury  189 

from  the  drum  or  wheel  case,  no  person  shall  be  permitted 
in  said  room  with  them.  They  shall  take  the  last  returned 
assessor's  book  of  the  county  and  from  it  carefully  select 
from  the  intelligent,  sober,  discreet  and  impartial  citizens, 
resident  housekeepers  in  different  portions  of  the  county, 
over  twenty-one  years  of  age,  the  following  number  of 
names  of  such  persons,  to-wit:  (then  follows  the  number 
that  shall  be  selected  from  each  county,  graded  according 
to  the  population.)  Each  name  so  selected  they  shall  write 
in  jDlain  handwriting  on  a  small  slip  of  paper,  each  slip 
of  paper  being  as  near  the  same  size  and  appearance  as 
practicable ;  and  each  slip  with  the  name  written  thereon 
shall  be  by  them  enclosed  in  a  small  case  made  of  paper  or 
other  material  and  deposited  unsealed  in  the  revolving 
drum  or  wheel  case  hereinafter  provided  for." 

In  answer  to  the  argument  made  for  appellants,  it  is 
said  for  appellee  that  the  record  does  not  show  that  the 
substantial  rights  of  appellants  were  prejudiced  by  the 
action  of  the  court  in  overruling  the  challenge  to  the  array ; 
*  *  *  The  record  does  not  disclose  that  the  members  of 
the  panel  from  which  the  jurors  were  selected  to  try  the 
case  were  in  any  respect  objectionable,  and  in  this  partic- 
ular the  substantial  rights  of  appellants  were  not  preju- 
diced by  the  rulings  of  the  trial  court ;  but,  in  a  matter  that 
strikes  at  the  very  foundation  of  our  system  of  selecting 
jurors,  we  do  not  deem  it  material  or  necessary  that  any 
prejudicial  error  shall  be  made  to  apj)ear,  other  than  a 
substantial  one  committed  in  failing  to  select  the  juries  in 
the  manner  pointed  out  in  the  statute.  It  is  probable  that 
the  jurors  selected  to  and  that  did  try  this  particular  case 
were  men  who  possessed  all  the  statutory  qualifications; 
and  it  may  also  be  conceded  that  they  were  entirely  ac- 
ceptable to  counsel  and  parties  on  both  sides.  But  back  of 
this  is  the  more  important  question  that  litigants  have  the 
unqualified  right  to  demand  that  juries  shall  be  selected  in 
the  manner  prescribed  in  the  statute,  and  in  passing  on  this 
right  the  individual  qualification  of  the  juror  or  the  fact 
that  he  may  be  entirely  acce]itable  to  the  parties  is  not  to  be 
considered.  If  the  contention  of  appellee  was  sound,  the 
careful  and  elaborate  scheme  devised  for  selecting  juries 
would  be  nullified,  the  statute  would  be  a  dead  letter,  and 
no  inquiry  could  be  made  into  the  manner  in  which  jurors 


190  Trial  Peactice  [Cliap.  5 

were  originally  chosen,  if  those  selected  to  try  the  particular 
case  possessed  the  statutory  qualifications  and  were  person- 
ally satisfactory.  The  Legislature,  in  obedience  to  a  pop- 
ular demand  that  a  radical  change  be  made  in  the  manner 
of  selecting  juries,  after  long  delay  and  much  discussion, 
enacted  the  statute  now  in  force;  and  this  court  in  more 
than  one  case  has  given  to  this  law  the  sanction  of  its  ap- 
proval and  declared  that  its  efficiency  shall  not  be  impaired 
or  destroyed  by  the  failure  of  public  officers  to  observe  its 
requirements. 

Thus,  in  Curtis  v.  Com.,  23  Ky.  Law  Rep.  267,  62  S.  W. 
886,  a  motion  was  made  to  discharge  the  entire  panel  of 
petit  jurors,  because  the  names  of  the  jurors  were  not 
drawn  from  the  jury  wheel  as  they  should  have  been,  but 
were  selected  from  a  list  regularly  summoned  in  a  previous 
month.    This  being  a  criminal  case,  this  court  had  no  power 
to  review  the  action  of  the  trial  court  in  overruling  the 
challenge  to  the  array,  but  in  the  course  of  the  opinion 
said:    "These  men  so  selected  may  have  been,  and  doubt- 
less were,  of  the  very  best  citizenship  in  the  county;  but 
they  were  not  drawn  impartially  from  the  body  of  legally 
qualified  jurymen  of  the  county.     The  mode  provided  by 
law  for  the  selection  of  qualified  and  impartial  jurymen 
was  ignored,  and  the  jury  were  selected  by  the  judge  of  the 
circuit  court  himself.     This  was  clearly  erroneous.     He 
may  have  done  this  with  the  very  best  of  motive,  but  it  was 
not  the  method  provided  by  law,  and  should  not  have  been 
done."   In    Covington  &  Cincinnati  Bridge  Co.  v.  Smith, 
25  Ky.  Law  Kep.  2292,  88  S.  W.  440,  in  discussing  this  jury 
law,  the  court  said:    "The  statutes  quoted  provide  an  elab- 
orate system  for  the  selection  monthly  in  courts  of  con- 
tinuous session  of  impartial  jurymen  fresh  from  the  body 
of  the  people.     If  these  provisions  are  enforced,  each  liti- 
gant is  guaranteed  that  the  best  effort  possible  has  been 
made  to  secure  for  the  trial  of  his  case  an  impartial  jury. 
It  is  not  believed  that  the  requirements  in  the  statute  in 
regard  to  the  selection  of  juries  would  have  been  set  forth 
with  such  minute  particularity  and  detail,  if  it  had  been 
intended  that  the  court  might  nullify  the  manifest  inten- 
tion of  the  Legislature  by  ignoring  them."     In  Risner  v. 
Com.,  95  Ky.  539,  26  S.  W.  388, 16  Ky.  Law  Rep.  84,  the  jury 
commissioners  did  not  put  in  the  wheel  the  number  of  names 


Sec.  3]  The  Juby  191 

required,  and  the  court  said:  "Wliile  it  is  not  made  to  di- 
rectly or  certainly  appear  that  appellant  was  thereby  sub- 
stantially prejudiced,  still  he  had  the  right  to  insist  upon  be- 
ing tried  by  only  a  jury  obtained  according  to  the  statute, 
which  was  passed  for  the  purpose  of  securing  fair  and  im- 
13artial  jurors;  and,  to  more  effectually  accomplish  that  end, 
the  names  of  at  least  200  persons  should  have  been  placed 
in  the  drum  or  wheel  case.  This  provision  cannot  be  disre- 
garded in  any  substantial  particular  without  defeating  one 
of  the  principal  purposes  of  the  statute."  Central  Ken- 
tucky Asylum  for  the  Insane  v.  Hauns,  21  Ky.  Law  Rep.  22, 
50  S.  W.  978,  to  which  our  attention  is  called  by  counsel 
for  api)ellee,  is  not  in  point;  nor  is  it  in  conflict  with  the 
authorities  cited.  There  the  objection  to  the  manner  in 
which  the  jury  was  selected  was  not  made  until  after  the 
trial  was  completed,  and  hence  came  too  late  to  be  avail- 
able. 

If  the  methods  avowed  to  have  been  adopted  in  this  case 
by  the  commissioners  are  upheld,  all  the  safeguards  thrown 
around  the  selection  of  juries  will  be  virtually  abolished, 
and  the  effort  of  the  legislative  department  to  improve  and 
elevate  the  jury  system  a  failure.  The  juries  are  almost 
entirely  composed  of  men  selected  by  the  commissioners, 
and  this  power  confided  to  them  cannot  be  delegated  in 
whole  or  in  part  to  others.  No  minor  officers  connected  with 
the  administration  of  justice  have  more  important  duties 
to  perform  than  do  the  jury  commissioners.  Upon  their 
judgment  and  discretion  in  the  selection  of  intelligent, 
sober,  discreet,  and  impartial  citizens  and  housekeepers  of 
the  county  depends  in  a  large  measure  the  pure  and  im- 
partial administration  of  justice  in  the  conduct  of  jury 
trials,  and  this  valuable  privilege  ought  not  and  will  not 
be  frittered  away  merely  because  delay  or  inconvenience 
to  the  court  or  litigants  may  result  from  sustaining  a  chal- 
lenge to  the  array  because  of  substantial  irregularity  in 
the  selection  of  the  juries.  It  is  iafinitely  better  that  there 
should  be  some  delay  in  the  trial  of  cases  or  inconvenience 
suffered  by  individuals  than  that  a  statute  intended  to  safe- 
guard the  rights  of  all  litigants  should  be  totally  disre- 
garded. If  the  mistake  or  irregularity  was  a  minor  one, 
we  would  not  regard  it  as  material;  but,  if  the  avowals 
made  are  true,  the  statute  was  violated  in  several  substan- 


192  Teial  Peactice  [Chap.  5 

tial  particulars.  The  provisions  disregarded  are  not  direc- 
tory, but  mandatory.  They  constitute  the  very  substance 
and  life  of  the  law,  and  may  not  lightly  be  ignored  or  dis- 
obeyed. No  fraud  or  improper  purpose  can  be  imputed  to 
these  commissioners,  nor  is  it  necessary  that  it  should  be. 
Doubtless  they  acted  in  good  faith,  but  nevertheless  in  open 
disobedience  of  the  law  under  which  they  were  selected, 
and  their  conduct  can  neither  be  overlooked  nor  approved. 

For  the  error  mentioned,    the    judgment    must    be    re- 
versed}    *     *     * 


ULLMAN  V.  STATE. 

Supreme  Court  of  Wisconsin.    1905. 

124  Wisconsin,  602. 

Plaintiff  in  error  was  duly  informed  against  as  having 
on  the  3rd  day  of  August,  1902,  at  Dodge  County,  Wiscon- 
sin, made  an  assault  on  Ida  Ullman  with  a  loaded  revolver 
with  intent  her,  the  said  Ida  Ullman,  to  kill  and  murder.  In 
due  time  and  form  he  entered  a  plea  of  not  guilty,  and  was 
tried  in  October,  1903,  in  the  circuit  court  for  Dodge  county. 

Makshall,  J.  Before  the  impaneling  the  jury  for  the 
trial  was  commenced,  counsel  for  the  accused  said  he  de- 
sired to  "file  a  challenge  to  the  array  of  jurors,"  accom- 
panying such  statement  by  presenting  a  paper  in  that  re- 
gard, which  was  placed  on  file.  Such  paper  was  not  in- 
corporated into  the  bill  of  exceptions,  neither  does  the  bill 
show  in  any  formal  way  the  grounds  of  the  challenge.  The 
proceedings  had  in  respect  to  the  matter  show  i3retty  clearly 
what  such  grounds  were.  The  point  is  made  by  the  attorney 
general  tliat  such  a  challenge  must  be  made  in  writing,  stat- 
ing specifically  the  grounds  thereof,  and  that  the  writing 
must  bo  embodied  in  the  bill  of  exceptions  in  order  to  en- 
aI)lo  this  court  to  review  the  decision  of  the  trial  court  in  re- 
spect thereto.    If  that  be  correct,  whether  the  decision  over- 


Sec.  3]  The  Jury  193 

'  ruling  the  challenge  to  the  array  was  proper  or  not,  is  not 
before  us. 

At  common  law  a  challenge  to  the  array  was  required  to 
be  made  in  writing,  stating  specifically  the  grounds  relied 
on.  An  issue  of  law  or  fact  was  then  formed  in  respect 
thereto,  which  was  tried  by  the  court,  if  one  of  law,  and  by 
triers  appointed  by  the  court,  if  of  fact.  Under  our  statu- 
tory system  for  selecting  and  returning  jurors  there  is  no 
challenge  to  the  array  in  the  strict  common-law  sense.  The 
Code  was  designed  to  be  as  complete  for  the  trial  of  crimi- 
nal as  for  the  trial  of  civil  cases.  It  makes  no  provision 
for  a  challenge  to  the  array,  or  for  any  equivalent  pro- 
ceeding. One  is  liable  to  fall  into  confusion  in  respect  to 
the  matter  by  failing  to  note  the  fact  that  most  of  the  de- 
cisions in  this  country  in  Code  states,  where  it  is  said  that 
a  challenge  to  the  array  must  be  in  writing,  are  based  on 
statutory  requirements.  In  Iowa,  where  there  is  an  ex- 
press provision  for  a  challenge  to  the  entire  panel,  it  is 
said  that  the  common-law  challenge  to  the  array  does  not 
exist.  State  v.  Davis,  41  Iowa,  311.  It  is  said  in  cases  de- 
cided in  New  York,  California,  Texas,  Michigan,  Minne- 
sota, Mississippi,  and  other  states  that  might  be  mentioned, 
that  a  challenge  to  the  array  must  be  in  writing,  but  it  will 
be  found  on  investigation  that  such  decisions  merely  follow 
statutory  requirements.  The  ancient  method  of  trying  is- 
sues of  fact  raised  on  such  challenge  is  obsolete.  All  is- 
sues, whether  of  law  or  fact,  on  an  abjection  to  the  entire 
panel  of  jurors  are  now  triable  summarily  by  the  court, 
whether  the  making  of  the  challenge  is  regulated  by  statute 
or  is  a  mere  matter  of  practice  regulated  by  the  court. 
Trial  courts  have  inherent  authority,  and  it  is  their  duty, 
to  permit  and  give  consideration  to  objections  seasonably 
and  properly  made  to  the  entire  panel  of  jurors,  based  upon 
grounds  specifically  stated,  which,  if  true,  indicate  that  the 
statutory  method  of  selecting  jurors  was  prejudicially  de- 
parted from.  The  motion  or  objection  may  properly  be,  as 
it  commonly  has  been  in  this  state  under  the  Code,  called  a 
challenge  to  the  array.  State  v.  Cameron,  2  Pin.  490; 
ConJi-ey  v.  Norfhern  Bank,  6  Wis.  447;  Perry  v.  State,  9 
Wis.  19.  But  that  does  not  imply  that  it  must  be  regarded 
as  having  all  the  common  law  characteristics.  It  has  only 
such  of  them  as  are  appropriate  to  our  judicial  system.  It 
T.  p.— 13 


194  Trial  Peactice  [Chap.  5 

is  said  in  12  Ency.  PI.  &  Pr.  426:  ''At  common  law  a  chal- 
lenge to  the  array  was  required  to  be  in  writing,  and  where 
this  requirement  has  not  been  abrogated  by  statute  the  rule 
of  the  common  law  is  still  in  force,"  citing  authorities  from 
seven  states,  in  each  of  which,  however,  the  matter  is  regu- 
lated by  statute. 

There  is  neither  any  statute  nor  rule  of  court  nor  de- 
cisions in  this  state  regulating  definitely  the  practice  as  to 
objecting  to  the  entire  panel  of  jurors.  The  right  to  make 
such  an  objection,  however,  has  always  been  recognized, 
and  exists  by  well  established  practice.  It  makes  no  very 
great  difference  how  the  question  of  the  validity  of  the 
panel  is  raised  so  long  as  the  grounds  thereof  are  brought 
definitely  to  the  attention  of  the  court.  It  may  be  in  the 
form  of  an  objection  to  the  entire  panel,  or  a  motion  to 
quash  the  return  thereof,  or  be  made  in  the  set  phrase  of  a 
challenge  to  the  array.  Mere  form  is  of  little  consequence 
when  not  necessary  by  statute.  The  spirit  of  the  Code,  gen- 
erally speaking,  is  that  the  substance  of  things  only  is 
material.  If  it  were  the  practice  to  make  the  objection 
only  in  writing  and  to  denominate  it  by  any  particular  name, 
and  the  trial  court  were  to  permit  a  violation  thereof  and 
entertain  the  matter  nevertheless,  unless  it  appeared  that 
the  adverse  party  was  prejudiced  thereby  the  error  would 
be  regarded  as  harmless  under  sec.  2829,  Stats.  1898. 

While  it  is  good  practice  to  make  a  challenge  to  the  ar- 
ray, so  called,  in  writing,  since  there  is  no  statute  requir- 
ing it  to  be  so  made,  and  a  stenographer  is  now  a  part  of 
the  regular  machinery  of  a  trial  court,  who  is  expected  to 
take  down  accurately  everything  that  occurs  in  the  course 
of  a  trial,  the  reason,  in  the  main,  for  the  common-law  rule 
as  to  the  manner  of  presenting  the  challenge,  no  longer  ex- 
ists. It  should  therefore  be  deemed  entirely  sufficient  if  the 
challenge  is  stated  definitely  at  the  bar  of  the  court  and 
taken  down  by  the  stenographer. 

It  was  early  held  here  in  harmony  with  the  common-law 
rule  that  the  grounds  of  a  challenge  to  the  array  should  be 
specifically  stated.  Conhey  v.  Northern  Bank,  6  Wis.  447. 
That  should  be  regarded  as  the  settled  practice.  Though 
the  trial  court  has  some  discretion  as  to  how  specifically 
the  grounds  of  challenge  must  be  stated,  the  statement 
should  be  sufficiently  full  and  definite  to  inform  the  trial 


Sec.  3]  The  Jury  195 

court  and  the  adverse  party  reasonably  of  the  precise  de- 
partures from  the  legal  requirements  relied  upon.  The 
right  of  challenge  should  be  exercised  before  commencing 
to  impanel  the  jury,  otherwise  it  should  be  deemed  waived. 
12  Ency.  PI.  &  Pr.  424.  No  departure  from  that  rule  is  per- 
missible except  for  extraordinary  reasons. 

In  this  case  the  practice  as  to  the  time  of  making  the 
objection,  motion,  or  challenge  and  the  manner  thereof,  ex- 
cept in  that  the  specific  grounds  relied  on  do  not  appear  in 
the  bill  of  exceptions,  the  writing  in  respect  thereto  being 
absent  therefrom,  was  proper.  The  practice  of  the  court 
also  in  treating  the  grounds  assigned  for  the  challenge, 
not  admitted  by  the  adverse  party,  as  at  issue  and  sum- 
marily trying  the  issues,  was  proper.  Since  such  grounds 
were  not  formerly  stated,  taken  down  by  the  stenographer, 
and  preserved  in  the  bill,  and  the  writing  filed  was  not 
so  preserved  we  might  properly  omit  consideration  thereof. 
However,  since  it  appears  that  the  questions  raised  by  the 
challenge  were  fully  tried  and  the  grounds  with  reason- 
able clearness  appear  from  the  evidence,  we  have  concluded 
to  treat  the  matter. 

The  evidence  taken  upon  the  trial  of  .the  issues  involved  in 
the  challenge  indicates  that  the  grounds  relied  on  were 
as  follows:  First,  whereas  the  statute  provides  that  the 
jury  commissioners  shall  furnish  the  clerk  of  the  circuit 
court  one  list  of  names  of  persons  qualified  to  serve  as 
jurors,  to  be  drawn  from  the  body  of  the  county,  each  com- 
missioner proposed  and  furnished  a  partial  list,  and  such 
lists  were  treated  as  satisfying  the  statute.  Second,  the 
commissioners  did  not  furnish  the  clerk  of  the  circuit  court 
a  complete  list  of  names  verified  or  certified  in  proper 
form.  Third,  the  clerk  did  not  make  a  copy  of  the  lists 
filed  and  deliver  the  same  to  the  commissioners  or  any  one 
of  them.  Fourth,  the  names  furnished  to  the  clerk  as 
aforesaid  were  not  written  upon  separate  slips  of  paper, 
and  the  slips  folded  and  put  into  a  box  by  the  clerk  or  his 
deputy,  as  the  law  requires.  The  facts  appear  to  be  these  .• 
Each  commissioner  made  a  list  and  submitted  it  to  the  three 
for  consideration.  They  approved  of  such  three  lists,  which 
in  the  aggregate  included  the  requisite  names,  as  the  one 
list  which  the  statute  required,  and  delivered  the  same  to 
the  clerk  of  the  circuit  court.     Such  clerk  did  not  make 


196  Tbial  Practice  [Chap.  5 

a  copy  of  the  lists  so  furnished  and  deliver  the  same  to  at 
least  one  of  the  commissioners,  as  the  law  requires,  but 
each  of  the  commissioners,  to  the  knowledge  of  the  clerk, 
preserved  a  copy  of  the  list  proposed  by  him.  The  law  does 
not  require  the  commissioners  to  make  any  verification  or 
formal  certification  of  the  list  furnished  to  the  clerk.  While 
neither  the  clerk  nor  his  deputy  wrote  the  names  of  the 
persons  appearing  upon  the  lists  furnished,  as  aforesaid, 
on  separate  slips  of  paper,  and  it  is  not  certain  that  either 
one  of  them  folded  the  slips  after  the  names  were  written 
thereon,  and  placed  the  same  in  a  box  in  the  presence  of 
the  commissioners,  as  the  law  requires,  the  names  were 
so  written  by  a  person  acting  under  the  direction  of*  the 
clerk  in  his  presence  and  in  the  presence  of  the  deputy 
and  the  commissioners,  and  the  slif)s  were  then  by  the 
direction  of  the  clerk,  in  his  presence  and  in  the  presence 
of  the  commissioners,  either  by  the  deputy  clerk  or 
the  person  who  wrote  the  names,  placed  in  the  box.  The 
names  so  written  upon  slips  of  paper  and  put  in  the 
box  were  the  identical  names  on  the  list  furnished  by  the 
commissioners.  There  is  an  entire  absence  in  the  record  of 
any  showing  of  prejudicial  departure  from  the  letter  of  the 
statute.  The  mere  fact  that  each  commissioner  proposed 
a  list  of  names  for  a  part  of  the  entire  list -to  be  agreed 
upon,  and  the  several  partial  lists  were  approved  and  in 
tliat  form  handed  to  the  clerk,  instead  of  the  three  lists 
being  transferred  to  one  and  in  that  form  delivered,  is  of  no 
consequence  whatever.  The  fact  that  the  physicial  acts 
of  writing  the  names  on  slips  of  paper  and  folding  such 
slips  ready  for  the  box  and  putting  them  therein,  if  such 
be  the  fact,  in  the  whole,  is  likewise  of  no  consequence,  since 
it  appears  that  such  person  acted  under  the  immediate 
direction  of  the  clerk,  in  his  presence  and  in  the  presence 
of  the  commissioners,  and  there  is  not  only  no  indication 
<liat  there  was  any  prejudicial  departure  from  the  statute 
in  the  matter,  but  tliei-e  is  conclusive  affirmative  evidence  to 
the  contrary.  Tiie  general  rule  as  to  irregularties  in  execut- 
ing tlie  statutory  method  for  selecting  jurors  is  that  they 
are  to  ])e  deemed  immaterial,  unless  it  appears  probable  that 
tlic  person  seeking  to  take  advantage  thereof  may  be  pre- 
judiced thereby.  Proffatt,  Jury  Trial,  Sec.  154 ;  Thompson 
&  Merriam,  Juries,  Sec.  134;  12  Ency.  PI  &  Pr.  277. 


Sec.  4]  The  Jury  197 

The  point  is  made  by  the  attorney  general  that  in  any 
case  the  challenge  to  the  array  was  waived  by  the  failure  to 
object  to  the  jury  as  a  whole,  reliance  being  placed  on 
Jackson  v.  State,  91  Wis.  253,  267,  64  N.  W.  838.  The  rule 
invoked  has  never  been,  and  it  seems  cannot  reasonably  be, 
applied  to  objection  to  the  entire  panel  of  jurors.  It 
only  goes  to  objections  to  individual  jurors.  When  an  ex- 
ception is  once  properly  saved  to  a  ruling  on  an  objection 
to  the  entire  panel  of  jurors  it  will  be  available  upon  a 
subsequent  review  of  the  final  result  without  further  calling 

the  matter  to  the  attention  of  the  trial  court. 

********** 

By  the  Court. — Judgment  is  affirmed. 


Section  4.     Qualifications  of  Jurors. 

KUMLI  V.  SOUTHERN  PACIFIC  COMPANY. 

Supreme  Court  of  Oregon.    1892, 

21  Oregon,  505. 

Bean,  J. — This  is  an  action  to  recover  damages  for  in- 
juries alleged  to  have  been  received  by  plaintiff  while  a  pas- 
senger on  one  of  defendant's  passenger  trains  which  was 
wrecked  by  the  falling  of  the  bridge  or  trestlework  across 
the  marsh  known  as  Lake  Labish,  in  Marion  county,  in  No- 
vember, 1890.  The  trial  resulted  in  a  verdict  and  judgment 
in  favor  of  plaintiff  for  the  sum  of  fifteen  hundred  dollars, 
from  which  defendant  appeals,  assigning  as  error  the  action 
of  the  court  in  overruling  its  challenge  for  actual  bias,  to  the 
jurors  Kennedy,  Harriott,  Cooley,  and  Her,  and  in  refusing 
to  set  aside  the  verdict  of  the  jury,  because  it  is  so  excessive, 
and  so  disproportionate  to  the  amount  of  plaintiff's  injury 
as  to  indicate  passion  or  prejudice  on  the  part  of  the  jury. 
These  assignments  of  error  will  be  noticed  in  the  order 
indicated. 

1.  As  to  the  overruling  of  the  challenge  to  the  jurors :  It 
is  unnecessary  to  state  the  facts,  as  disclosed  by  the  exam- 
ination of  any  of  the  jurors,  or  their  voir  dire,  except  the 


198  Tkial  Pkactice  [Cliap.  5 

juror  Her,  whose  examination  presents  as  strong  a  case 
for  the  defendant  as  any  in  the  record.  The  juror  Her,  in 
his  examination  in  chief  by  defendant's  counsel,  said  that 
he  did  not  know  the  plaintiff;  had  heard  nothing  about  this 
case;  had  heard  considerable  talk  about  the  wreck;  read 
of  it  in  the  newspapers,  and  heard  persons  talk  about  it 
who  claimed  to  have  looked  at  and  examined  the  wreck; 
from  what  he  had  heard  the  persons  say  who  had  examined 
the  wreck,  and  what  he  saw  in  the  newspapers,  he  had 
formed  and  expressed  an  opinion  as  to  whether  or  not  the 
railroad  company  was  to  blame  for  the  wreck ;  he  had  that 
opinion  then;  did  not  know  that  it  was  a  particularly  fixed 
opinion;  it  is  one  that  would  require  some  evidence  to  re- 
move. He  could  not  say  how  many  persons  he  had  heard 
talk  about  the  wreck,  who  had  examined  and  looked  at  it,  but 
supposed,  perhaps,  a  half  dozen ;  they  said  what  they  sup- 
posed caused  the  wreck;  they  were  persons  whom  he  had  re- 
spect for.  From  what  they  said,  and  what  he  had  read  in 
the  newspapers,  he  had  formed  an  opinion  as  to  the  cause 
of  the  wreck;  he  had  heard  the  various  theories  put  forth 
through  the  newspapers,  as  to  whether  the  wreck  was 
caused  by  a  defective  structure,  or  by  a  rail  being  removed 
from  the  track  by  some  evil-disposed  person.  At  the  con- 
clusion of  his  examination  by  counsel,  the  juror,  in  response 
to  questions  by  the  court,  said  that  what  he  had  heard  about 
the  transaction  was  not  from  any  of  the  witnesses  in  the 
case,  but  just  from  persons  who  had  gone  to  view  the 
wreck;  that  no  opinion  he  had  formed  would  influence  his 
judgment  in  the  trial  of  the  case,  but  he  should  try  the  case 
impartially,  according  to  the  law  and  the  evidence;  that  he 
could  disregard  what  he  had  heard  about  the  wreck,  and 
would  be  governed  by  the  evidence  altogether;  would  not 
regard  what  he  had  heard,  as  it  was  only  hearsay;  would 
pay  no  attention  to  what  he  had  been  told,  but  would  simply 
be  guided  by  the  testimony  given  in  court.  The  challenge 
was  thereupon  overruled  by  the  court,  defendant  excepting. 
There  is  much  conflict  in  the  adjudged  cases  as  to  when 
an  opinion  touching  the  merits  of  the  particular  case  will 
disqualify  a  person  called  as  a  juror.  The  standard  of  Lord 
Mansfield,  in  Mylock  v.  Saladine,  1  W.  Bl.  480,  that  ''a 
juror  should  be  as  white  as  paper,  and  know  neither  plain- 
tiff or  defendant,  but  judge  of  the  issue  merely  as  an  ab- 


Sec.  4]  The  Juey  199 

stract  propositon  upon  the  evidence  produced  before  him," 
has  long  since  been  discarded  as  impracticable.  The  courts 
are  agreed,  that  with  the  present  popular  intelligence  and 
wide  dissemination  of  current  events,  through  the  medium 
of  the  press,  a  juror's  mind  cannot  reasonably  be  expected 
to  be  ''as  white  as  paper,"  and  it  is  no  longer  regarded  as 
an  objection,  per  se,  to  a  person  called  as  a  juror,  that  he 
has  heard  of  the  particular  case,  or  even  formed  or  ex- 
pressed an  opinion  touching  the  merits  thereof. 

''Were  it  possible,"  said  Mr.  Chief  Justice  Makshall,  ''to 
obtain  a  jurv  without  any  prepossessions  whatever,  respect- 
ing the  guilt  or  innocence  of  the  accused,  it  would  be  ex- 
tremely desirable  to  obtain  such  a  jury;  but  this  is  perhaps, 
impossible,  and  therefore  not  required.  The  opinion  which 
has  been  avowed  by  the  court  is,  that  light  impressions, 
which  may  fairly  be  supposed  to  yield  to  the  testimony  that 
may  be  offered,  which  may  leave, the  mind  open  to  a  fair 
jection  to  a  juror;  but  that  those  strong  and  deep  impres- 
sions which  will  close  the  mind  against  the  testimony  that 
may  be  offered  in  opposition  to  them,  which  will  combat 
that  testimony  and  resist  its  force,  do  constitute  a  suffic- 
ient objection  to  him."  (Trial  of  Aaron  Burr,  Vol.  1,  416; 
1  Thomps.  Trials,  sec.  79.) 

The  rule  laid  down  by  this  distinguished  jurist  in  a 
trial  which  at  the  time  attracted  universal  attention,  has 
become  substantially  the  settled  law  of  this  country,  and  it 
is  now  generally  considered  that  if  the  juror's  opinion  will 
readily  yield  to  the  evidence  presented  in  the  case,  he  is  not 
incompetent  to  sit  upon  the  trial  of  the  issue. 

As  to  when  the  opinion  is  of  such  a  character,  that  it  will 
not  readily  yield  to  the  evidence  produced,  the  law  in  this 
country  is  in  such  a  state  of  confusion,  that  no  success  can 
be  hoped  for  in  reconciling  conflicting  opinions,  or  arraying 
the  decisions  in  logical  order.  Expressed  in  the  varying 
terms  of  judicial  utterances,  the  opinion  or  impression  con- 
cerning the  merits  of  the  cause  on  trial,  which  disqualifies 
a  person  called  as  a  juror,  must  be  a  "fixed,"  "absolute," 
"positive,"  "definite,"  "decided,"  "substantial,"  "delib- 
erate," "unconditional"  opinion.  The  rule  is  almost  uni- 
versally laid  down  by  these  words,  or  words  of  similar  im- 
port. A  "conditional,"  "hypothetical,"  "contingent,"  "in- 


200  Trial  Practice  [Chap.  5 

determinate,"  '' floating,"  ''indefinite,"  "uncertain"  opin- 
ion will  not  do.  {Schoeffler  v.  State,  3  Wis.  *823 ;  People  v. 
Bodine,  1  Denio  281 ;  Staup  v.  Com.,  74  Penn.  St.  458 ;  Willis 
V.  State,  12  Ga.  444;  Osiander  v.  Com.,  3  Leigh  780,  24 
Am.  Dec.  693;  People  v.  Stout,  4  Parker  Crim.  Rep.  71;  1 
Thomps.  Trials,  sec.  78.)  These  terms  convey  one  and  the 
same  meaning,  and,  in  substance,  require  that  in  order  to 
disqualify  a  juror,  his  opinion  touching  the  merits  of  the 
case  on  trial  must  be  of  a  fi.xed  and  determinate  character, 
deliberately  formed  and  still  entertained;  one  that  in  an 
undue  measure  shuts  out  a  different  belief.  An  opinion  or 
impression  formed  from  rumor,  newspaper  reports,  or 
casual  conversation  with  others,  which  the  juror  feels  con- 
scious he  can  dismiss,  and  so  unsubstantial  that  contradic- 
tion from  the  same  source  would  be  as  readily  accepted  as 
true,  as  the  original  statements  upon  which  the  impression 
or  opinion  was  formed,'  constitute,  ordinarily,  no  sufficient 
objection  to  him. 

"The  opinion  or  judgment,"  says  Chief  Justice  Shaw, 
"must  be  something  more  than  a  vague  impression,  formed 
from  casual  conversation  with  others,  or  from  reading  im- 
perfect, abbreviated  newspaper  reports.  It  must  be  such 
an  opinion,  upon  the  merits  of  the  question,  as  would  be 
likely  to  bias  or  prevent  a  candid  judgment  upon  a  full 
hearing  of  the  evidence.  If  one  had  formed,  what  in  some 
sense  might  be  called  an  opinion,  but  which  yet  fell  far 
short  of  exciting  any  bias  or  prejudice,  he  might  conscient- 
iouslv  discharge  his  duty  as  a  juror."  {Comw.  v.  Webster, 
5  Cush.  297;  52  Am.  Dec.  711.) 

While  the  rule  is  genrally  recognized,  that  the  disquali- 
fying opinion  of  a  juror  must  be  of  a  fixed  and  determined 
character,  its  application  is  frequently  a  matter  of  great 
nicety,  and  the  courts  have  struggled,  apparently  in  vain, 
to  establish  some  judicial  test,  by  which  the  question  can 
})e  determined.  In  order  to  avoid  the  uncertainty  in  the 
d(!cisions,  as  well  as  the  supposed  inflexible  rules  of  law,  by 
which  the  courts  were  driven,  in  many  instances,  to  the  illit- 
erate and  hopelessly  ignorant  portions  of  the  community  for 
jurors,  the  legislature  of  this,  as  well  as  many  other  states, 
lijis  enacted  a  statute  by  which  the  competency  of  a  person, 
called  as  a  juror,  shall  be  determined,  on  the  trial  of  a  chai- 


Sec.  4]  The  Juey  201 

lenge,  for  having  an  opinion  touching  the  merits  of  the  par- 
ticular case. 

By  section  187,  Hill's  Code,  it  is  provided,  that  on  the 
trial  of  a  challenge  for  actual  bias,  *' although  it  should  ap- 
pear that  the  juror  challenged  has  formed  or  expressed 
an  opinion  upon  the  merits  of  the  cause  from  what  he  may 
have  heard  or  read,  such  opinion  shall  not  of  itself  be  suftic- 
ient  to  sustain  the  challenge,  but  the  court  must  be  satisfied 
from  all  the  circumstances  that  the  juror  cannot  disregard 
such  opinion,  and  try  the  issue  impartially."  This  statute 
is  but  a  recognition  of  the  fact  that,  at  the  present  day, 
when  newspapers,  railroads,  and  telegraphs  have  made 
intercommunication  easy,  and  when  the  important  transac- 
tions of  today  in  all  their  details  are  published  to  the  world 
tomorrow,  the  advance  of  popular  intelligence  and  wide 
dissemination  of  knowledge  of  current  events,  have  under 
the  former  rules  of  law,  rendered  it  inapossible  to  secure 
a  jury  of  intelligent  men  for  the  trial  of  causes  which  have 
excited  much  public  attention  and  have  resulted  in  the  ne- 
cessity of  trying  such  cases  before  juries  composed  of  the 
illiterate  and  ignorant.  Statutes  of  this  character  have  been 
held  not  unconstitutional  as  invading  the  right  of  trial  by 
jury.  {Stokes  v.  People,  53  N.  Y.  164;  13  Am.  Rep.  492; 
Jones  V.  People,  2  Colo.  351;  Cooper  v.  State,  16  Ohio  St. 
328.) 

This  statute  does  not  deny  the  principle,  which  has  its 
foundation  in  natural  justice  as  well  as  law,  that  jurors 
should  be  impaHial  and  free  from  any  existing  bias  which 
may  influence  their  judgment.  But  it  assumes,  and  we  think 
correctly,  that  a  man  may  be  a  fair  and  impartial  juror,  al- 
though he  have  an  opinion  touching  the  merits  of  the  cause 
on  trial,  and  that  he  may,  notwithstanding,  be  able  to  set 
aside  and  disregard  such  opinion  and  decide  the  case  from 
the  evidence  independently  thereof  and  uninfluenced  there- 
by. We  think  human  experience  teaches  that  it  may  not 
unfreqently  happen  that  persons  who  have  formed  an  opin- 
ion touching  the  merits  of  a  cause  from  reports  verbal  or 
written,  may,  as  jurors,  lay  aside  their  prepossessions,  and 
not  only  honestly  and  conscientiously  endeavor,  but  in  fact 
be  able  to  hear  and  decide  the  case  upon  the  evidence, 
uninflunced  by  such  prepossessions.  Whether  a  person 
called  as  a  juror  can  do  so  or  not  depends  largely;  upon  his 


202  Trial  Practice  [Chap.  5 

general  intelligence,  manner,  tone,  appearance,  personal 
peculiarities,  and  sources  of  information  from  which  his 
opinion  is  formed,  its  strength,  the  fact  whether  he  exhibits 
any  pride  of  opinion  which  may  lead  him  to  give  too  little 
or  too  much  weight  to  the  testimony  for  or  against  either 
party,  and  many  other  circumstances,  difficult  if  not  impos- 
sible to  suggest.  The  determination  of  his  competency, 
therefore,  necessarily  becomes  primarily  a  question  for  the 
trial  court,  keeping  ever  in  view,  as  it  should,  that  the  ulti- 
mate object  to  be  attained  is  a  trial  before  a  fair  and  im- 
partial jury.  The  question  is  wisely  left  largely  to  the 
sound  discretion  of  that  court,  and  its  findings  upon  a  chal- 
lenge to  a  juror  for  actual  bias,  where  there  is  any  reason- 
able question  as  to  his  competency,  ought  not  to  be  reviewed 
by  an  appellate  court  unless  it  clearly  appear  that  such  dis- 
cretion has  been  arbitrarily  exercised.  {State  v.  Tom,  8  Or. 
177;  State  v.  Saunders,  14  Or.  300.) 

It  is  ordinarily  more  safe  and  just  to  the  juror  and  the 
cause  of  truth,  to  trust  to  the  impression  made  upon  the 
trial  court,  which  heard  his  testimony,  and  noticed  his 
manner  and  appearance  while  under  examination,  subject 
to  the  scrutiny  of  counsel,  than  to  any  written  or  reported 
statement  of  his  testimony.  His  tone,  temperament,  and 
personal  peculiarities,  as  exhibited  on  his  examination,  and 
which  do  not  appear  in  the  written  report  of  his  testimony, 
are  important  factors  in  determining  his  competency  as  a 
juror.  If  a  person  called  as  a  juror  on  his  examination, 
opinion  in  the  case,  on  the  merits,  and  nothing  further  is 
shown,  the  court  ought,  as  a  matter  of  law,  to  reject  him 
as  incompetent.  Such  a  juror  necessarily  does  not  stand 
indifferent  between  the  parties,  and  it  matters  little  from 
what  source  he  received  the  information  upon  which  his 
opinion  is  based.  If,  however,  he  has  no  fixed  belief  or 
prejudice,  and  is  able  to  say  he  can  fairly  try  the  case 
on  the  evidence,  freed  from  the  influence  of  such  opinion  or 
impression,  his  competency  becomes  a  question  for  the  trial 
f'ourt,  in  the  exercise  of  a  sound  discretion,  and  its  findings 
ought  not  to  be  set  aside  by  an  appellate  court  unless  tiie 
f'li-or  is  manifest.  "No  less  stringent  rules,"  says  Mr.  Jus- 
tice Waite,  "should  be  applied  by  the  reviewing  court  in 
siK'h  a  case  than  those  whicli  govern  in  the  consideration 
of  motions  for  new  trial  because  the  verdict  is  against  the 


Sec.  4]  The  Juby  203 

evidence.  It  must  be  made  clearly  to  appear  that  upon 
the  evidence  the  court  ought  to  have  found  the  juror  had 
formed  such  an  opinion  that  he  could  not  in  law  be  deemed 
impartial.  The  case  must  be  one  in  which  it  is  manifest 
the  law  left  nothing  to  the  conscience  or  discretion  of  the 
court."    {Reynolds  v.  U  .8.,  98  U.  S.  156.) 

In  the  case  before  us,  we  think  the  challenges  to  the  jurors 
were  each  properly  overruled.  Such  opinions  as  they  had 
were  formed  from  newspaper  reports  and  casual  conversa- 
tions with  persons  who  had  visited  the  wreck.  They  evident- 
ly had  no  prejudice  against  the  defendant,  and  had  taken  no 
particular  interest  in  the  case.  It  is  apparent  that  they 
had  nothing  but  loose,  floating,  hesitating  opinions ;  and  as 
far  as  we  can  see,  there  was  no  such  prejudgment  of  the 
case  as  would  prevent  them  from  sitting  as  fair  and  im- 
partial jurors.  The  language  of  their  examniation  is  quali- 
fied and  considerate,  and  is  not  that  of  positive  men,  hasty 
to  judge  and  prompt  to  condemn,  but  rather  that  of  honest, 
careful  conscientious  men,  fair,  open,  and  candid,  with  an 
obvious  purpose  to  conceal  nothing  and  suppress  nothing. 
They  each  was  conscious  that  they  could  disregard  all  they 
had  heard  about  the  case,  and  try  it  on  the  evidence  as  pro- 
duced, uninfluenced  by  any  opinion  or  impression  they  then 
had.  We  cannot  think  this  is  such  a  manifestation  of  par- 
tiality or  prejudice  as  left  nothing  to  the  conscience  or  dis- 
cretion of  the  trial  court. 

********** 

The  judgment  is  affirmed. 


THEOBALD  V.  ST.  LOUIS  TRANSIT  COMPANY. 

Supreme  Court  of  Missouri.    1905, 

191  Missouri,  395. 

Marshall,  J. — This  is  an  action  for  $5,000  damages  aris- 
ing from  the  death  of  the  plaintiff's  nineteen  year  old  son, 
about  six  o'clock  in  the  afternoon  on  the  20th  of  January, 
1903,  caused  by  one  of  the  defendant's  cars  colliding  with 
the  rear  of  a  wagon  driven  by  the  deceased,  at  a  point  sev- 


204  Trial  Practice  [Chap.  5 

enty  to  one  hundred  fifty  feet  west  of  Union  avcmue  on  De 
Giverville  avenue,  in  the  city  of  St.  Louis.  There  was  a 
verdict  and  judgment  for  the  plaintiff  for  $5,000,  and  the 
defendant  appealed. 


I. 

The  first  error  assigned  is  the  ruling  of  the  trial  court 
in  overruling  the  challenge  for  cause  of  the  jurors  Hart- 
man  and  Bensberg. 

Briefly  stated  the  facts  developed  upon  the  voir  dire 
were,  that  eight  or  nine  years  before  the  trial  the  juror 
Hartman  had  been  thrown  off  of  a  car.  He  stated  that  that 
fact  would  influence  him  in  the  trial  of  this  cause.  He  also 
stated  that  he  would,  be  governed  by  the  testimony  and  in- 
structions of  the  court,  and  believed  that  he  could  render  an 
impartial  verdict;  that  he  had  nothing  against  this  de- 
fendant, but  that  he  had  during  all  those  years  entertained 
a  prejudice  against  street  car  companies,  and  that  that  pre- 
judice existed  when  he  was  first  examined  as  to  his  quali- 
fications for  a  juror,  but  that  during  the  examination,  that 
prejudice  had  been  removed,  and  that  he  had  reached  the 
conclusion  within  the  last  five  minutes  that  he  could  try  this 
case  impartially. 

The  juror  Bensberg  testified  that  he  had  a  sort  of  a 
prejudice  against  the  company,  and  that  he  did  not  think 
it  would  influence  his  verdict  as  a  juror,  yet  added,  ''But 
still  a  person  having  a  prejudice,  that  would  probably  un- 
consciously bias  his  opinion."  And  further  added:  "I 
would  give  more  preference  to  the  testimony  of  a  non-em- 
ployee of  the  company  than  I  would  an  employee."  Upon 
the  court's  suggestion  that  he  meant  thereby  that  he  would 
consider  the  interest  of  the  employee  in  determining  the 
credibility  of  his  evidence,  the  juror  acceded  to  that  view. 
After  examination  by  the  court  and  counsel,  the  juror  was 
asked:  "Q.  Well,  really,  Mr.  Juror,  I  do  not  understand 
your  position  now.  Tliat  is  the  reason  I  am  asking  these 
questions.  A.  Well,  as  I  said  before,  I  have  a  prejudice 
against  the  company  to  start  with.  Q.  You  still  have  that 
prejudice?  A.  Still  have  it.  Q.  And  you  also  have  a 
prejudice  against  the  testimony  of  employees.  A.  I  would 
not  give  it  the  same  preference  that  I  would  the  evidence 


Sec.  4]  The  Juby  205 

of  a  person  who  was  not  an  interested  party  on  either  side 
— more  so  an  employee  of  the  company." 

Under  our  system  of  jurisprudence  there  is  no  feature 
of  a  trial  more  important  and  more  necessary  to  the  pure 
and  just  administration  of  the  law  than  that  every  litigant 
shall  be  accorded  a  fair  trial  before  a  jury  of  his  country- 
men, who  enter  upon  the  trial  totally  disinterested  and 
wholly  unprejudiced.  Where  a  juror  admits,  as  Hartman 
did,  that  he  had  a  prejudice  against  street  car  companies  of 
eight  or  ten  years  standing,  and  that  that  prejudice  existed 
up  to  the  time  he  gave  his  first  answer  upon  his  voir  dire, 
yet  after  being  examined  and  cross-examined  by  counsel  and 
the  court,  and  being  put  in  the  position  of  having  to  say 
he  would  allow  that  prejudice  to  overcome  the  obligation  of 
his  oath  as  a  juror,  or  on  the  other  hand  to  say  that  he 
could  divest  his  mind  of  such  a  prejudice  and  fairly  try  a 
case,  and  that  the  prejudice  had  become  dissipated  within 
the  last  five  minutes,  it  can  scarcely  be  reasonably  said  that 
such  a  juror  fills  the  requirements  of  our  system  of  juris- 
prudence. 

The  juror  Bensberg  more  candidly  and  accurately  stated 
the  conditions  existing  in  such  cases  when  he  said:  ''Well, 
a  person  having  a  prejudice,  that  would  probably  unconsci- 
ously bias  his  opinion."  The  truth  of  this  statemenr  is 
self-evident.  The  question  of  the  qualification  of  a  juror  is 
a  question  to  be  decided  by  the  court,  and  not  one  to  be  de- 
cided by  a  juror  himself.  It  is  the  prerogative  and  duty  of 
the  trial  court  to  exercise  a  wise,  judicial  discretion  in  this 
regard,  and  the  conclusion  of  the  court  should  rest  upon  the 
facts  stated  by  the  juror  with  reference  to  his  state  of 
mind,  and  should  not  be  allowed  to  depend  upon  the  con- 
clusions of  the  juror  as  to  whether  or  not  he  could  or 
would  divest  himself  of  a  prejudice  he  admitted  existed  in 
his  mind.  And  this  is  true  whether  the  prejudice  exists 
against  either  of  the  parties  or  against  the  character  of  the 
subject-matter  in  litigation,  or  against  either  of  the  parties 
as  a  class,  and  not  against  the  party  as  an  individual.  It  is 
proper  to  examine  a  juror  as  to  the  nature,  character  and 
cause  of  his  prejudice  or  bias,  but  it  is  not  proper  to  per- 
mit the  juror,  who  admits  the  existence  in  his  mind  of  such 
prejudice  or  bias,  to  determine  whether  or  not  he  can  or 
cannot,  under  his  oath,  render  an  impartial  verdict.    Such 


206  Trial  Peactice  [Chap.  5 

a  course  permits  the  juror  to  be  the  judge  of  his  qualifica- 
tions instead  of  requiring  the  court  to  pass  upon  them  as 
questions  of  fact. 

It  is  altogether  a  mistaken  idea  that  the  ruling  of  the 
trial  court  on  such  questions  is  conclusive  and  not  subject  to 
review.  In  some  cases  it  has  been  loosely  said  that  the 
ruling  of  the  court  on  such  questions  is  like  the  ruling  of 
the  trial  court  in  law  cases,  and  that  where  there  is  any 
evidence  to  support  the  ruling,  an  appellate  court  will  not 
review  the  same.  Such  questions  generally  arise  only  in 
cases  at  law.  It  is  the  discretion  exercised  by  the  trial  judge 
which  is  the  subject  of  review.  In  approaching  the  decision 
of  that  question  an  appellate  court  is  always  guided  by  the 
same  rule  that  obtains  with  reference  to  the  review  of  dis- 
cretionary judicial  acts  of  inferior  tribunals.  Great  defer- 
ence is  paid  to  the  finding  of  a  trial  judge,  but  that  finding 
is  not  conclusive,  and  where  the  facts  are,  as  here,  practic- 
ally undisi3uted,  such  ruling  is  subject  to  review  on  appeal. 
Otherwise  the  whole  power  and  authority  as  to  the  selection 
of  jurors  would  be  vested  in  the  trial  court,  and  it  is  against 
the  policy  of  our  law  to  permit  any  ruling  in  nisi  prius  court 
to  be  beyond  review  and  correction  by  an  appellate  court. 
Accorded  such  a  power,  all  else  would  be  a  foregone  con- 
clusion, and  a  litigant  would  be  entirely  at  the  mercy  of 
the  trial  judge,  and  the  usefulness  and  propriety  of  appel- 
late courts,  would,  to  a  large  extent,  be  diminished. 

This  matter  has  been  the  subject  of  much  consideration 
and  adjudication,  not  only  in  this  State  but  in  sister  states, 
and  text  writers  have  undertaken  to  formulate  rules  which 
should  be  observed  in  the  determination  of  the  question.  An 
examination  of  cases  cited  in  the  briefs  of  counsel,  shows  a 
vast  contrariety  of  opinion  and  ruling  in  cases  of  this  char- 
acter. 

Counsel  for  plaintiff  refer  to  Thompson  in  his  work  on 
Trials,  section  100,  where  it  is  said:  "Under  modern  prac- 
tice the  court  acts  as  trier  of  all  challenges.  And  the  de- 
termination of  questions  of  fact  is  final  and  not  subject  to 
review."  Of  this  it  is  sufficient  to  say  that  such  is  not  the 
lule  in  tliis  State. 

Counsel  for  plaintiff  further  refer  to  Thompson  on  Trials, 
section  115,  where  the  doctrine  is  laid  down  as  follows: 


Sec.  4]  The  Juey  207 

''The  sound  and  prevailing  view  is  that  a  party  cannot,  on 
error  or  appeal,  complain  of  a  ruling  of  a  trial  court  in  over- 
ruling his  challenge  for  cause,  if  it  appear  that,  when  the 
jury  is  completed,  his  peremptory  challenges  were  not  ex- 
hausted ;  since  he  might  have  excluded  the  obnoxious  juror 
by  a  peremptory  challenge,  and  therefore  the  error  is  to 
be  deemed  error  without  injury.  For  the  same  reason,  if 
a  court  erroneously  overrules  a  challenge  for  cause,  and 
thereafter  the  challenging  party  excludes  the  obnoxious 
juror  by  a  peremptory  challenge,  he  cannot  assign  the  ruling 
of  the  court  for  error,  unless  it  appear  that,  before  the  jury 
was  sworn,  his  quiver  of  peremptory  challenges  was  ex- 
hausted ;  in  which  case  there  is  room  for  the  inference  that 
the  erroneous  ruling  of  the  court  may  have  resulted  in  leav- 
ing upon  the  panel  other  obnoxious  jurors  whom  the  party 
might,  but  for  the  ruling,  have  excluded  by  peremptory  chal- 
lenge. Some  courts,  therefore,  hold  that  it  is  enough,  in  such 
a  juncture,  to  show  that  his  peremptory  challenges  were  ex- 
hausted before  the  jury  was  sworn.  But  others  take  what 
seems  the  better  view,  that  it  must  also  appear,  not  only 
that  his  peremptory  challenges  were  exhausted,  but  that 
some  objectionable  person  took  his  place  on  the  jury,  who 
otherwise  would  have  been  excluded  by  a  peremptory  chal- 
lenge." 

Counsel  for  plaintiff  cite  cases  which  hold  that  even  where 
the  trial  court  erred  in  overruling  a  challenge  for  cause  it 
must  affirmatively  appear  by  the  record  that  the  party  had 
exhausted  his  peremptory  challenges  in  order  to  success- 
fully challenge  the  ruling  of  the  court. 

This  doctrine  is  manifestly  pregnant  with  difficulty,  and 
would  necessitate  an  extensive  collateral  inquiry  precedent 
to  the  regular  proceedings  in  a  case,  in  order  that  it  might 
appear  that  the  aggrieved  party  had  or  had  not  exhausted 
his  peremptory  challenges,  or  had  not  been  driven  to  the 
necessity  of  using  some  of  his  peremptory  challenges  to  get 
rid  of  the  alleged  prejudiced  juror,  whom  he  had  challenged 
for  cause,  and  thereby  been  deprived  of  the  opportunity 
of  getting  rid  of  other  objectionable  jurors,  though  less  ob- 
jectionable than  the  juror  challenged  for  cause.  Such  a 
ruling  imposes  a  burden  upon  the  party  aggrieved,  which 
he  ought  not  to  be  compelled  to  bear,  and  reverses  the  theory 
of  our  system  of  jurisprudence  that  error  is  prejudicial, 


208  Tkial  Pkactice  [Chap.  5 

unless  the  party  in  whose  favor  the  error  is  committed, 
shows  that  it  was  harmless  error.  The  rule  stated  by 
Thompson  on  Trials  reverses  this  practice  and  imposes 
upon  the  party  who  points  out  and  assigns  the  error,  the 
further  burden  of  showing  affirmatively  that  he  was  pre- 
judiced by  the  error.  Under  our  statute  each  party  is  abso- 
lutely entitled  to  three  peremptory  challenges.  The  statute 
also  gives  parties  litigant  the  right  to  challenge  a  juror  for 
cause.  If  error  appears  in  the  ruling  of  the  court  on  a  chal- 
lenge for  cause  that  question  should  be  decided  wholly  in- 
dependent of  any  consideration  of  whether  the  party  liti- 
gant had  or  had  not  exhausted  his  peremptory  challenges. 
In  other  words,  the  statute  provides  for  two  classes  of  chal- 
lenges, one  for  cause  and  the  other  peremptorily  without 
assigning  any  cause.  And  in  the  determination  of  the  ques- 
tion of  the  propriety  of  the  ruling  upon  a  challenge  for 
cause,  it  is  improper  to  mix  with  it  a  consideration  of  the 
question  as  to  whether  or  not  the  complaining  party  had 
exhausted  his  peremptory  challenges. 

The  conclusion  is  irresistible  that  the  trial  court  should 

have  sustained  the  challenge  for  cause. 

********** 

For  the  foregoing  reasons  the  judgment  of  the  circuit 
court  is  reversed. 

Bkace^  p.  J.,  concurs ;  Valliant  and  Lamm,  J.  J.,  concur 
in  paragraphs  1  and  2,  and  in  the  result. 


WILSON  V.  WAPELLO  COUNTY. 

Supreme  Court  of  loiva.    1905. 

129  Iowa,  77. 

Action  at  law  to  recover  damages  growing  out  of  the 
death  of  W.  M.  Wilson,  plaintiff's  intestate,  and  which 
deatli  was  occasioned,  as  alleged,  by  the  negligence  of  the 
defendant  county  in  permitting  a  county  bridge  to  remain  in 
a  defective  and  dangerous  condition.    Upon  trial  there  was 


Sec.  4]  The  Juey  209 

a  verdict  and  judgment  in  favor  of  defendant,  and  tlie  plain- 
tiff appeals. — Affirmed. 

********** 

Bishop,  J. — I.  This  action  was  commenced  in  January, 
1903,  and  was  reached  for  trial  upon  the  issues  joined  in  De- 
cember, 1904.  As  the  jury  was  being  impaneled,  the  plain- 
tiff challenged  for  cause  each  of  the  individual  jurors  called 
into  the  box  who  made  answer  that  he  was  a  property  owner 
and  tax  payer  in  the  county.  The  ground  of  challenge  was 
that  the  juror  was  ''incomiDetent  because  of  showing  such 
a  state  of  mind  as  would  preclude  him  from  rendering  a  just 
verdict  in  said  cause."  The  several  challenges  were  over- 
ruled, and,  after  exhausting  her  right  of  peremptory  chal- 
lenge, the  plaintiff  was  compelled  to  go  to  trial  before  a 
jury  made  up  of  taxpayers  of  the  county.  Out  of  this  sit- 
uation arises  the  error  first  complained  of.  The  statute  en- 
umerates the  several  grounds  upon  which  a  challenge  for 
cause  to  an  individual  juror  may  be  laid.  Among  these, 
and  it  is  the  only  one  having  any  pertinency  to  the  present 
inquiry,  is  the  following:  "When  it  appears  the  juror  *  *  * 
shows  such  a  state  of  mind  as  will  preclude  him  from 
rendering  a  just  verdict."  Code,  section  3688,  subd.  9. 

It  must  be  apparent  that  a  challenge  based  upon  such 
ground  calls  only  for  a  conclusion  upon  a  fact  question, 
and  of  necessity  such  question  is  addressed  to  the  sound  dis- 
cretion of  the  trial  court.  And,  as  in  other  cases,  where  an 
exercise  of  discretion  is  under  review,  we  may  not  interfere, 
except  an  abuse  be  made  to  appear.  Anson  v.  Dwight,  18 
Iowa,  241 ;  Sprague  v.  Atlee,  81  Iowa,  1 ;  Goldthorp  v.  Gold- 
thorp,  115  Iowa,  430. 

Now  it  may  very  well  be  considered  that  a  personal  pe- 
cuniary interest  in  the  result  of  an  action  is  of  itself  suffic- 
ient to  justify  a  finding  that  a  state  of  mind  exists  such  as 
to  preclude  a  just  verdict.  And  without  doubt  every  tax- 
payer within  the  limits  of  a  municipal  corporation  is  inter- 
ested in  a  pecuniary  sense  in  the  result  of  an  action  brought 
against  such  corporation  to  recover  damages  as  for  a  per- 
sonal injury.  He  must  contribute  in  the  way  of  payment 
of  taxes  to  liquidate  any  judgment  that  may  be  obtained. 
It  is  in  line  with  this  thought  that  we  have  uniformly  held 
that  in  actions  against  a  city  or  town  for  the  recovery  of 
money  there  was  no  abuse  of  discretion  in  sustaining  a 
T.  p.— 14 


210  Tkial  Practice  [Chap.  5 

challenge  for  cause  to  a  juror;  the  challenge  being  predi- 
cated wholly  upon  the  fact  that  the  juror  was  a  taxpayer 
of  the  defendant  city  or  town.  Of  such  cases  are  these: 
Davenport,  etc.,  Co.  v.  Davenport,  13  Iowa,  229;  Dively  v. 
Cedar  Falls,  21  Iowa  567;  Cramer  v.  Burlington,  42  Iowa 
315;  Cason  v.  Ottumwa,  102  Iowa  99. 

Some  language  is  used  in  the  opinion  in  the  Cramer  Case, 
and  likewise  in  the  Cason  Case,  upon  which  an  argument 
might  be  based,  to  the  effect  that  it  would  be  reversible  er- 
ror to  overrule  a  challenge  made  to  a  taxpayer  called  as  a 
juror  in  such  a  case,  but  respecting  such  matter  we  need  not 
make  any  pronouncement  at  this  time.  It  is  sufficient  to 
remark  in  this  connection  that  jurors  are  drawn  from  the 
county  at  large,  and  where  a  city,  town,  or  other  minor 
municipality  is  proceeded  against  no  substantial  injustice 
could  result  from  a  trial  to  a  jury  made  up  of  non-taxpaying 
members  of  the  panel.  Moreover,  no  difficulty  need  be  ap- 
prehended in  such  cases,  as  challenges  on  the  ground  of  in- 
terest, if  sustained,  could  not  have  the  effect  of  blocking  the 
machinery  of  the  court,  and  thus  make  it  impossible  that  a 
case  be  put  upon  trial.  When,  however,  a  county  is  pro- 
ceeded against,  the  court  is  confronted  with  quite  a  differ- 
ent situation.  While  there  is  no  requirement  in  the  statute 
that  one  must  be  a  taxpayer  to  be  eligible  as  a  juror,  yet 
it  is  fair  to  presume  that  each  person  drawn  for  jury  ser- 
vice is  the  owner  of  some  property,  greater  or  less  in 
amount  or  value,  which  is  the  subject  of  taxation.  Indeed, 
we  think  it  within  common  experience  in  this  State  that 
the  appearance  of  a  non-taxpaying  juror  furnishes  a  rare 
exception  to  the  rule.  And  it  is  hardly  conceivable  that  a 
panel  should  be  drawn  in  any  county  presenting  a  sufficient 
number  of  non-taxpaying  members  to  make  it  possible  to 
make  up  a  jury  out  of  such  for  the  trial  of  a  case.  It  may 
be  true  enough  that,  after  exhausting  the  regular  panel, 
the  drawing  of  talesmen  might  be  resorted  to  and  continued 
indefinitely  until  a  sufficient  number  of  jurors  who  could 
pass  challenge  should  be  found.  Conceding  the  possibility 
of  such  a  course,  and  to  say  nothing  of  the  expense  incident 
thereto,  we  should  be  very  slow  to  condemn  the  discretion- 
ary action  of  a  trial  court  in  refusing  to  compel  parties 
to  sul)mit  tlioir  important  matters  of  difference  to  a  jury 
which  might  be  eventually  thus  made  up.    And  this  conclus- 


Sec.  4]  The  Jury  211 

ion  is  the  more  readily  reached  in  view  of  the  statute  which 
gives  a  phiintiff  who  has  brought  an  action  triable  to  a  jury 
against  a  county,  in  the  court  of  that  county,  as  he  must, 
the  unqualified  right  to  have  the  place  of  trial  changed  to 
an  adjoining  county.    Code,  section  3505,  subd.  1. 

In  some  of  the  sister  States  it  has  been  provided  by  stat- 
ute that,  in  an  action  against  a  county,  it  shall  be  no  ground 
of  challenge  that  a  juror  called  to  the  box  is  a  taxpayer  of 
the  county.  And  such  enactments  are  undoubtedly  based 
upon  the  thought  that  the  extent  of  the  personal  interest 
of  an  individual  taxpayer  is  too  slight  to  be  permitted  to 
outweigh,  not  only  the  necessity  for  a  speedy  disposition 
of  cases  thus  brought,  but  the  desirability  of  having  every 
jury  made  up  from  the  substantial  citizenship  of  the  county. 
In  other  States  it  has  been  held  that,  in  the  absence  of  a 
mandatory  statute,  the  slight  financial  interest  which  flows 
from  the  obligation  to  pay  taxes  is  not  sufficient  to  disqualify 
a  juror,  where  otherwise  there  would  be  a  failure  of  justice. 
Com.  V.  Ryan,  5  Mass.  90;  Com.  v.  Brown,  147  Mass.  585 
(18  N.  E.  Rep.  587, 1  L.  R.  A.  620,  9  Am.  St.  Rep.  736) ;  State 
v.  Intoxicating  Liquors,  54  Me.  564;  Middletown  v.  Ames, 
7  Vt.  166',Bassett  v.  Governor,  11  Ga.  207. 

We  conclude  that  there  was  no  error,  and  the  judgment  is 
affirmed. 


SEARLE  V.  ROMAN  CATHOLIC  BISHOP  OF 
SPRINGFIELD. 

ROMAN  CATHOLIC  BISHOP  OF  SPRINGFIELD 
V.  SEARLE. 

Supreme  Judicial  Court  of  Massachusetts.    1909, 

203  Massachusetts,  493. 

Two  Actions  of  Tort;  the  first  action  by  George  Everett 
Searle  against  the  Roman  Catholic  Bishop  of  Springfield, 
who  as  a  corporation  sole  under  St.  1898,  c.  368,  held  the 
title  to  certain  real  estate  in  the  town  of  Easthampton,  which 


212  Teial  Peactice  [Chap.  5 

was  bought  as  a  site  for  a  church  edifice,  alleging  the  con- 
version by  the  defendant  of  a  one  story  and  a  half  wooden 
building  alleged  to  be  personal  property  and  to  be  the 
property  of  the  plaintiff,  having  been  built  for  the  plaintiff 
by  one  Charles  W.  Smith,  with  the  consent  of  Delia  A. 
Strong,  who  then  was  the  owner  of  the  land;  and  the 
second  action  by  the  defendant  in  the  first  case  against  the 
plaintiff  in  the  first  case  and  certain  other  persons,  for 
damages  alleged  to  have  been  caused  by  an  attempt  to  re- 
move the  building  from  the  real  estate,  of  which  it  was  al- 
leged to  be  a  part,  seeking  also  equitable  relief  by  way  of 
injunction.  ***** 

Knowlton,  C.  J.  The  question  at  the  trial  was  whether 
a  building  erected  on  land  of  the  defendant  in  the  first  ac- 
tion, who  will  hereinafter  be  called  the  defendant,  was  per- 
sonal property  belonging  to  Searle,  who  will  hereinafter  be 
called  the  plaintiff,  or  was  real  estate  owned  by  the  de- 
fendant. 

********** 

Exception  was  taken  by  the  defendant  to  the  ruling  of 
the  judge  at  the  request  of  the  plaintiff,  that  no  person  of 
the  Roman  Catholic  faith  should  sit  as  a  juror  in  these  cases. 
Under  this  ruling  two  jurors  were  excluded  from  the  panel, 
one  a  resident  of  Northampton  and  the  other  a  resident  of 
South  Hadley.  The  ruling  was  made  on  the  ground  that  the 
defendant  is  the  Roman  Catholic  Bishop  of  Springfield, 
a  corporation  sole  under  the  St.  1898,  c.  368,  who  holds 
the  title  to  the  real  estate  in  trust  for  the  Roman  Cath- 
olic church,  and  that  these  excluded  jurors  have  an  inter- 
est in  the  suit  analogous  to  that  which  taxpayers  have 
in  a  suit  against  the  city  or  town  in  which  they  re- 
side. It  is  not  contended  and  it  could  not  successfully 
be  contended  that  holding  the  same  religious  belief  as  one 
of  tlie  parties,  or  affiliation  with  him  in  the  same  church, 
woukl  disqualify  a  person  from  sitting  as  a  juror  in  his 
case.  The  application  of  such  a  doctrine  would  be  un- 
just and  impracticable.  Commonwealth  v.  Buzzell,  16  Pick. 
153;  Purple  v.  Horton,  13  Wend.  1;  Barton  v.  Erickson, 
14  Neb.  164;  Smith  v.  Sisters  of  Good  Shepherd,  27  Ky. 
Law  Rep.  1170. 

The  real  estate  held  by  the  defendant  is  in  the  town  of 
Easthampton,  and  it  was  bought  as  a  site  for  a  church  edi- 


Sec.  4]  The  Jury  213 

fice.  The  excluded  jurors  were  not  taxpayers  in  that  town, 
and  it  may  be  assumed  that  they  were  not  members  of  the 
parish  that  was  expected  to  use  the  church.  The  ruling  ap- 
plied to  all  jurors  of  the  Roman  Catholic  faith,  without 
reference  to  their  residence  or  to  any  close  affiliation  with 
the  local  church.  Has  every  person  of  the  Roman  Catholic 
faith  in  the  diocese  of  the  bishop  of  Springfield  a  pecuniary 
interest,  of  which  the  court  can  take  notice,  in  every  church 
owned  by  the  defendant  in  every  part  of  the  diocese?  We 
are  of  opinion  that  he  has  not.  It  does  not  appear,  and 
we  have  no  reason  to  suppose,  that  every  Roman  Catholic 
living  in  a  remote  part  of  the  diocese  can  be  affected  pecun- 
iarily by  a  small  loss  or  gain  of  the  bishop  as  owner,  in  con- 
nection with  the  erection  of  a  Roman  Catholic  church  in 
Easthampton. 

Under  the  St.  1898,  c.  368,  the  defendant's  holding  of 
property  is  "for  the  religious  and  charitable  purposes  of 
the  Roman  Catholic  Church."  In  the  R.  L.  c.  36,  sec.  44-46, 
it  is  strongly  implied  that  there  is  a  difference  in  the  trusts, 
and  in  the  beneficiaries,  among  churches  in  different  places^ 
and  that  the  members  of  a  particular  parish  and  those 
directly  connected  with  the  church  therein  have  different 
pecuniary  relations  to  the  church  there  from  those  of  the 
same  faith  who  live  in  a  different  part  of  the  same  diocese. 
Upon  the  record  before  us  this  ruling  of  the  judge  appears 
to  be  wrong.  See  Bxirdine  v.  Grand  Lodge  of  Alabama,  37 
Ala.  478;  Delaivare  Lodge  v.  AUmon,  1  Penn.  (Del.)  160. 

The  remaining  question  is  whether  the  error  was  pre- 
judicial to  the  legal  rights  of  the  defendant.  The  manner 
of  impaneling  jurors  is  prescribed  by  the  R.  L.  c.  176,  sec. 
25.  The  names  of  those  summoned  as  jurors  are  written 
on  ballots  and  placed  in  a  box,  and,  after  the  ballots  are 
shaken  up,  the  clerk  draws  them  one  by  one  in  succession 
until  twelve  are  drawn.  Apart  from  challenges,  'Hhe  twelve 
men  so  drawn  *  *  *  shall  be  the  jury  to  try  the  issue,"  etc. 
The  order  of  the  judge  was  a  violation  of  the  statutory  pro- 
vision, and  of  the  defendant's  right  to  have  the  excluded 
men  sit  as  jurors  unless  challenged  by  the  plaintiff. 

The  case  was  tried  by  other  qualified  jurors,  and  it  is 
argued  that  the  defendant  was  not  injured  by  the  order. 
Under  the  R.  L.  c.  176,  sec.  32,  no  irregularity  in  the  draw- 
ing, summoning,  returning  or  impaneling  of  jurors  is  suffic- 


214  Tkial  Practice  [Chap.  5 

lent  to  set  aside  the  verdict,  unless  the  objecting  party  was 
injured  thereby.     In  general  it  may  be  assumed  that  all 
duly  qualified  jurors,  against  whom  there  cannot  be  a  suc- 
cessful challenge  for  cause,  will  consider  and  try  a  case  pro- 
perly.   But  a  man  may  have  affiliations  and  friendships  or 
prejudices  and  habits  of  thought  which  would  be  likely  to 
lead  him  to  look  more  favorably  for  the  plaintiff,  or  less 
favorably  for  him,  upon  a  case  of  a  particular  class,  or 
upon  one  brought  by  a  particular  person  or  a  member  of  a 
particular  class  of  persons,  than  would  the  average  juror, 
even  though  his  peculiarities  are  not  sufficiently  pronounced 
to  disqualify  him  for  service.     It  is  in  reference  to  these 
peculiarities  that  the  parties  are  given  a  limited  number  of 
peremptory  challenges.    While  they  have  no  direct  right  of 
selection,  this  right  of  peremptory  challenge  gives  to  each 
party  a  restricted  opportunity  for  choice  among  qualified 
persons.     Anything  wliich  renders  this  statutory  right  of 
peremj:)tory  challenge  materially  less  valuable  is  an  injury 
to  a  party,  within  the  meaning  of  the  statute.    We  do  not 
intimate  that  any  juror  would  consciously  allow  feelings  of 
friendship   or  prejudice,   or  unusual   and  peculiar  habits 
of  thought,  to  affect  his  conduct  in  the  jury  room;  much 
less  that  a  party  has  a  right  to  have  the  benefit  of  the  pe- 
culiar views  or  special  feelings  of  a  particular  juror  in  the 
trial  of  his  case.    But  the  right  of  peremptory  challenge 
in  the  impaneling  of  jurors  cannot  be  disregarded  as  of  no 
value  to  the  parties.     In  the  case  at  bar,  a  class  of  per- 
sons qualified  as  jurors,  whom  the  plaintiff  thought  in  such 
relations   of  religious  affiliation  with  the  defendant   that 
they  would  be  likely  to  hear  his  defense  in  an  attitude  of 
special  friendship,  was  withdrawn  from  the  list  of  jurors. 
The  order  of  the  judge  rejecting  these  men,  at  the  request 
of  the  plaintiff,  gave  him  at  the  outset  an  additional  power 
of  choice,  and  made  his  right  of  peremptory  challenge  rela- 
tively more  valuable,  while  the  defendant's  similar  right 
\ias  made  relatively  less  valuable.  We  are  of  opinion  that 
this  was  an  injury  to  the  defendant  which  entitles  him  to 
a  new  trial.     The  number  of  persons  summoned  as  jurors 
that  b(!l()nged  to  this  class  does  not  appear.     It  only  ap- 
])eMrs  that  the  names  of  two  of  them  happened  to  be  drawn 
from  tlio  box. 

Our  decision  sooms  to  be  in  accordance  with  the  weight 


Sec.  5]  The  Juey  215 

of  authority,  although  some  of  the  cases  depend  upon  local 
statutes.  Hildreth  v.  Troy,  101  N.  Y.  23i;Welch  v.  Tribune 
Publishing  Co.,  83  Mich.  661 ;  Scranton  v.  Gore,  124  Penn.  St. 
595;  Montague  v.  Commonwealth,  10  Gratt.  767;  Kunneen 
V.  State,  96  Ga.  406;  Bell  v.  State,  115  Ala.  25;  Danzey  v. 
State,  126  Ala.  15. 

We  are  aware  that  courts  have  often  required  prett> 
clear  proof  of  injury  before  setting  aside  a  verdict  for  a 
cause  of  this  kind.  West  v.  Forrest,  22  Mo.  344;  Southern 
Pacific  Co.  V.  Rauh,  49  Fed.  Kep.  696;  Pittsburg,  Cincin- 
nati, Chicago  S  St.  Louis  Railroad  v.  Montgomery,  152  Ind. 
1,  23 ;  People  v.  Searcey,  121  Cal.  1 ;  Tatum  v.  Young,  1  Por- 
ter, (Ala.)  298;  Abilene  v.  Hendricks,  36  Kans.  196,  200.  It 
is  also  generally  held  that  an  appellate  court  will  not  review 
an  exercise  of  discretion,  or  a  mere  finding  of  fact  of  a 
trial  judge,  determining  whether  a  person  shall  sit  upon 
a  jury.  Commonwealth  v.  Hayden,  4  Gray  18;  Grace  v. 
Dempsey,  75  Wis.  313;  People  v.  Searcey,  121  Cal.  1,  3; 
Commonivealth  v.  Moore,  143  Mass.  136,  and  cases  cited. 
Whether  an  error  of  law  like  that  in  the  present  ease,  if 
it  arose  only  in  determining  the  qualifications  of  a  single 
juror,  should  be  held  so  far  to  injure  an  objecting  party  as 
to  require  the  verdict  to  be  set  aside,  we  do  not  find  it 
necessary  to  determine;  but  when,  as  in  the  present  case, 
the  ruling  applies  to  a  class  of  persons,  we  feel  constrained 
to  say  that  there  was  an  injury  of  which  the  law  should 
take  notice. 

Exceptions  sustained. 


Section  5.    Questioning  the  Jury. 

GOFF  V.  KOKOMO  BRASS  WORKS. 

Appellate  Court  of  Indiana.    1909, 

43  Indiana  Appellate,  642. 

Myers,  J. — Action  by  appellant  to  recover  damages  for 
[)ersonal  injuries  alleged  to  have  been  sustained  by  him 
while  in  the.  service  of  appellee.    The  issues  were  formed 


216  Trial  Practice  [Chap.  5 

by  the  complaint  and  answer  of  general  denial.  The  cause 
was  tried  by  a  jury  and  a  verdict  returned  for  appellee. 
From  a  judgment  in  favor  of  appellee  appellant  has  ap- 
pealed to  this  court,  assigning  as  error  the  overruling  of 
his  motion  for  a  new  trial. 

The  reasons  assigned  in  support  of  the  motion  relate 
solely  to  the  action  of  the  court  in  sustaining  the  objections 
of  appellee  to  certain  questions,  propounded  by  appellant  to 
the  persons  called  to  act  as  jurors,  touching  their  compe- 
tency and  qualifications  so  to  act.  These  questions  called 
for  information  as  to  whether  they  were  acquainted  with 
any  of  the  officers  or  agents  of  the  Travelers  Insurance 
Company,  whether  any  of  them  ever  had  any  business  re- 
lations with  that  company,  whether  they  were  then  or  ever 
had  been  the  agents  or  in  the  employ  of  that  company,  or 
whether  they  were  then  acquainted  with  any  agent  of  that 
company?  Preliminary  to  these  questions  appellant  offered 
to  introduce  evidence  to  the  court  tending  to  show  that 
the  Travelers  Insurance  Company  was  interested  in  the 
result  of  the  suit,  and  this  offer  was  refused.  A  complete 
examination  of  each  of  the  jurors  upon  his  voir  dire  is 
made  a  part  of  the  record  by  a  bill  of  exceptions.  Appellee 
contends  that,  the  jury  being  accepted  by  appellant,  without 
making  any  peremptory  challenge  or  objection  to  the  com- 
petency of  any  juror,  he  thereby  waived  any  error  that 
may  have  been  committed  in  impaneling  the  jury. 

From  the  objections  made  to  the  various  questions  pro- 
pounded by  appellant  to  each  of  the  jurors,  and  from  the 
rulings  of  the  court  as  disclosed  by  the  record,  it  appears 
that  the  court  proceeded  upon  the  theory  that,  as  appellee 
was  the  only  defendant  of  record,  the  latitude  of  appellant's 
inquiry  did  not  extend  to  elicit  the  suggested  informa- 
tion. 

The  matter  of  impaneling  a  jury  must,  to  a  great  ex- 
tent, be  left  to  the  sound  discretion  of  the  trial  court,  and 
only  in  cases  where  an  abuse  of  that  discretition  is  clearly 
shown  will  appellate  tribunals  disturb  the  judgment  of  that 
court.  Courts  of  last  resort  having  to  do  with  questions, 
in  principle,  not  unlike  the  one  here  presented,  with  al- 
most 0'i.ie  accord,  have  held  that  where  parties  are  acting  ui 
good  faith  considerable  latitude  should  be  allowed  along 
lines  touching  the  competency  of  persons  called  as  jurors 


Sec.  5]  The  Juey  217 

to  act  in  the  matter  under  investigation,  as  also  for  the 
purpose  of  furnishing  a  basis  upon  which  the  court  and 
parties  may  proceed  intelligently,  to  the  end  that  a  fair  and 
impartial  jury  may  be  obtained.  2  Elliott,  Gen  Prac,  Sees. 
507;  Epps  V.  State  (1885),  102  Ind.  539,  545;  Evansville 
Metal  Bed  Co.  v.  Loge  (1908),  42  Ind.  App.  4:61;  Donovan  v. 
People  (1891),  139  111.  412,  28  N.  E.  964;  SJioots  v.  State 
(1886),  108  Ind.  415;  Connors  v.  United  States  (1895),  158 
U.  S.  40'8,  15  Sup.  Ct.  951,  39  L.  Ed.  1033;  24  Cyc.  341; 
StepJienson  v.  State  (1887),  110  Ind.  358,  362,  59  Am.  Rep. 
216.  The  juror  is,  no  less  than  a  witness,  obliged  to  dis- 
close, upon  his  oath,  true  answers  to  such  questions  as  may 
be  asked  touching  his  competency  to  serve  as  a  juror  in  the 
case  about  to  be  tried  (Thornton  Juries  and  Instructions, 
Sees.  128;  Burt  v.  Panjaiid  (1878),  99  U.  S.  180,  25  L.  Ed. 
451),  and  the  court  should  exclude  questions  which  are  ir- 
relevant, and  would  not,  however  answered,  affect  the 
juror's  competency  in  the  particular  case,  or  which  would 
tend  to  mislead  or  confuse  a  juror,  or  would,  as  said  in  the 
case  of  ChyhoivsU  v.  Bncyrus  Co.  (1906),  127  Wis.  332,  106 
N.  W.  833,  7  L.  R.  A.  (N.  S.)  357,  clearly  give  ''undue  im- 
portance to  the  insurance  company's  connection  with  the 
case,  since  no  such  basis  was  necessary."  Howard  v.  Beld- 
enville  Lumber  Co.  (1906),  129  Wis.  98,*  108  N.  W.  ^8;Faber 
V.  C.  Reiss  Coal  Co.  (1905)  124  Wis.  554,  102  N.  W.  1049; 
Connors  v.  United  States,  supra;  24  Cyc.  341. 

In  M.  O'Connor  &  Co.  v.  Gillaspy  (1908),  170  Ind.  428,  it 
is  said:  "Parties  litigant  in  cases  of  this  class  are  entitled 
to  a  trial  by  a  thoroughly  impartial  jury,  and  have  a  right 
to  make  such  preliminary  inquiries  of  the  jurors  as  may 
seem  reasonably  necessary  to  show  their  impartiality  and 
disinterestedness.  In  the  exercise  of  this  right  counsel 
must  be  allowed  some  latitude,  to  be  regulated  in  the 
sound  discretition  of  the  trial  court,  according  to  the  na- 
ture and  attendant  circumstances  of  each  particular  case. 
The  examination  of  jurors  on  their  voir  dire  is  not  only 
for  the  purpose  of  exposing  grounds  of  challenge  for  cause, 
if  any  exist,  but  also  to  elicit  such  facts  as  will  enable 
counsel  to  exercise  their  right  of  peremptory  challenge  in- 
telligently. Questions  addressed  to  this  end  are  not  barred 
though  directed  to  matters  not  in  issue,  provided  they  are 
pertinent,  and  made  in  god  faith.    It  does  not  appear  from 


218  Trial  Practice  [Chap.  5 

the  record  that  an  accident  or  indemnity  insurance  com- 
pany was  in  any  manner  interested  in  this  action,  but  the 
laws  of  this  state  authorize  the  incorporation  of  companies 
for  indemnifying  employers  against  liability  for  accidental 
injuries  to  employes,  and  it  is  a  matter  of  common  knowl- 
edge that  numerous  companies  are  engaged  in  such  insur- 
ance in  this  State." 

In  the  case  at  bar  the  Travelers  Insurance  Company  was 
not  a  party  to  the  record,  and  for  aught  that  appears  from 
the  complaint  was  not  interested  in  the  result  of  the  suit, 
but  the  record  shows  that  appellant  offered  to  introduce 
evidence  to  the  court  tending  to  show  that  it  was  present 
in  court  by  hired  counsel  actively  engaged  in  defending  the 
action ;  and  that  it  had  issued  a  policy  of  insurance  to  ap- 
pellee. This  evidence  was  admissible  only  in  the  discretion 
of  the  court,  and  for  its  sole  use  in  determining  counsel's 
good  faith  in  pursuing  the  inquiry.  Therefore,  meeting  the 
question,  does  the  record  before  us  show  an  abuse  of  that 
discretion  lodged  with  the  trial  court  as  will  authorize  this 
court  to  set  aside  the  judgment?  Limiting  our  inquiry  to 
the  particular  information  desired  by  appellant,  as  in- 
dicated by  the  questions  propounded  to  each  juror,  and  to 
which  objections  were  sustained,  it  seems  to  us  quite  clear 
that  the  questions  should  have  been  answered.  For,  in  case 
the  insurance  company  was  pecuniarily  interested  in  the 
litigation,  a  person  in  its  employ  or  otherwise  interested 
in  it,  naturally  would  be  more  liable  to  be  unduly  influenced 
to  grant  an  advantage  on  the  side  of  his  employer  or  in 
the  protection  of  a  private  interest  than  one  having  a 
single  purpose — returning  a  verdict  according  to  the  law 
and  the  evidence.  In  Spoonick  v.  Backus-Brooks  Co.  (1903), 
89  Minn.  354,  358,  94  N.  W.  1079,  it  is  said:  ''That  either 
litigent  has  the  right  to  challenge  for  implied  bias  must, 
of  course,  be  admitted,  and  we  think  it  would  be  impossible 
to  say,  or  for  the  court  to  hold  in  the  exercise  of  its  proper 
discretion,  that  any  person  connected  with  the  indemnifying 
company  as  a  stockholder  or  otherwise  could  be  a  proper 
person  to  sit  as  a  juror  in  a  case  the  result  of  which  might 
l)e  of  pecuniary  interest  to  such  company.  If  the  proposed 
juror  was  a  stockliolder.or  otlierwise  interested  in  such  a 
company  his  disqualification  would  seem  to  follow  as  a 
matter  of  law.    If  this  be  so,  it  is  difficult  to  see  upon  what. 


Sec.  5]  The  Jurv  219 

ground  the  court  could  refuse  to  permit  counsel  to  ascertain 
the  facts  while  impaneling  the  jury.  It  is  no  answer  to  this 
to  say  that  the  insurance  company  is  not  named  as  a  party 
to  the  action,  for  the  bias  of  the  juror  is  not  to  be  determ- 
ined by  this  fact.  Xor  is  it  an  answer  to  say  that  counsel 
may  protect  his  client  by  using  a  peremjDtory  challenge.  It 
is  his  right  first  to  learn  the  facts,  and  he  must  do  so  to 
exercise  intelligently  his  right  to  challenge  peremptorily. 
The  authorities  all  go  to  show  that  a  very  insignificant  in- 
terest in  the  result  of  an  action,  and  frequently  a  ver\^  trif- 
ling relationship  to  one  of  the  parties,  is  sufficient  to  dis- 
qualify a  person  from  sitting  as  a  juror.  In  order  to  secure 
to  litigants  unbiased  and  unprejudced  jurors,  we  are  com- 
pelled to  hold  that  plaintiff's  counsel  had  a  right  to  ascer- 
tain whether  there  was  such  a  relationship  between  the  per- 
sons called  as  jurors  and  the  insurance  company,  a  cor- 
poration vitally  interested  in  the  result,  which  would  dis- 
qualify these  persons,  because,  by  implication,  they  would 
be  biased  and  prejudced."  And  see  Block  v.  State  (1885), 
100  Ind.  357;  Burnett  v.  Burlington,  etc.,  R.  Co.  (1884),  16 
Neb.  332,  20  N.  W.  280;  Ensign  v.  Harney  (1883),  15  Neb. 
330,  18  N.  W.  73,  48  Am.  Rep.  344;  Martin  v.  Farmers,  etc. 
Ins.  Co.  (1905),  139  Mich.  148, 102  N.  W.  6D6;Hearn  v.  City 
of  Greenshurgh  (1875),  51  Ind.  119;  Terre  Haute  Electric 
Co.  v.  Watson  (1904),  33  Ind.  App,  124;  Johnson  v.  Tyler 
(1891),  I  Ind.  App.  387;  2  Elliott,  Gen.  Prac.  Sees.  507,  514, 
515;  Beall  v.  Clark  (1883),  71  Ga.  818. 

The  weight  of  authority  affirms  the  right  of  parties  to 
examine  persons  called  as  jurors  on  their  voir  dire,  as  coun- 
sel sought  to  do  in  this  case.  He  was  denied  that  right.  The 
information  indicated  by  the  questions  does  not  appear  in 
the  record  as  having  been  furnished  in  any  other  manner. 
Whether  any  or  all  of  the  jurors  who  tried  the  case  had 
any  interest  in  the  insurance  company,  which  counsel  for 
appellant  offered  to  show  to  the  court  was  financially  in- 
terested in  the  result  of  the  litigation,  nowhere  appears. 
The  action  of  the  court  in  refusing  to  permit  counsel  for 
appellant  to  examine  the  persons  called  as  jurors  along  the 
line  suggested  in  this  opinion  was  error,  and,  in  the  ab- 
sence of  a  showing  that  it  was  harmless,  entitles  appellant 
to   reversal   of  the  judgment   without   first  showing  that 


220  Trial  Pkactice  [Chap.  5 

some  disqualified  juror  sat  in  the  case.  *  *  * 

Judgment  reversed.'^ 

iStatutory  restrictions.  In  some  states  the  character  and  scope  of  the 
questions  to  be  asked  a  juror  are  prescribed  by  statute.  See  Commonwealth  v. 
Warner,  (1899)  173  Mass  541,  54  N.  E.  353;  Commonwealth  v.  Poisson,  (1893) 
157  Mass.  510,  32  N.  E.  906;  State  v.  Bethum,  (1910)  86  S.  C.  143,  67  S.  E. 
466;  State  v.  Eoberts,  (1910)  (Del.)  78  Atl.  305;  Woolfolk  v.  State,  (1890) 
85  Ga.  69,  11  S.  E.  814. 


Section  6.    Method  of  Empanelling. 

POINTER  V.  UNITED  STATES. 

Supreme  Court  of  United  States.    1894. 

151  United  States,  396. 

Me.  Justice  Harlan  delivered  the  opinion  of  the  court. 

At  the  February  term,  1892,  of  the  Circuit  Court  of  the 
United  States  for  the  Western  District  of  Arkansas,  the 
grand  jury  returned  an  indictment  against  John  Pointer 
for  the  crime  of  murder. 

The  entire  panel  of  the  petit  jury  was  called  and  the 
jurors  were  examined  as  to  their  qualifications,  and,  the 
journal  entry  states,  thirty-seven  in  number  were  found 
to  be  generally  qualified  under  the  law,  that  is,  in  the 
words  of  the  bill  of  exceptions,  ''qualified  to  sit  on  this 
case."  The  defendant  and  the  government  were  then  fur- 
nished, each,  with  a  list  of  the  thirty-seven  jurors  thus 
selected,  that  they  might  make  their  respective  challenges, 
twentv  by  the  defendant  and  five  by  the  government,  the 
remaining  first  twelve  names,  not  challenged,  to  constitute 
the  trial  jury.  Tlie  defendant  at  the  time  objected  to  this 
mode  of  selecting  a  jury:  ''1st,  because  it  was  not  accord- 
ing to  the  rule  prescribed  by  the  laws  of  the  State  of  Ar- 
kansas; 2d,  because  it  was  not  the  rule  practiced  by  com- 
mon law  courts;  3d,  because  the  defendant  could  not  know 
the  particular  jurors  before  whom  he  would  be  tried  until 
after  his  cliallcngos.  as  guaranteed  by  the  statutes  of  the 
Unitod  Sfntos.  bnd  been  exhausted;  4th,  because  the  gov- 
ernment did  not  tender  to  the  defendant  the  jury  before 


Sec.  6]  The  Juky  221 

whom  he  was  to  be  tried,  but  tendered  seventeen  men  in- 
stead of  twelve,  and  made  it  impossible  for  defendant  to 
know  who  the  twelve  men  before  whom  he  was  to  be  tried 
were  until  after  his  right  to  challenge  was  ended." 

At  the  time  this  objection  was  made  the  defendant's 
counsel  saved  an  exception  to  the  mode  pursued  in  form- 
ing the  jury,  and  said:  ''The  point  we  make  is,  that  the 
government  must  offer  us  the  twelve  men  they  want  to 
try  the  case."  The  court  observed:  ''They  offered  you 
thirty-seven."  "We  understand,"  counsel  said,  "but  we 
want  to  save  that  point." 

The  right  to  challenge  a  given  number  of  jurors  with- 
out showing  cause  is  one  of  the  most  important  of  the 
rights  secured  to  the  accused.  "The  end  of  challenge," 
says  Coke,  "is  to  have  an  indifferent  trial,  and  which  is 
required  by  law;  and  to  bar  the  party  indicted  of  his  law- 
ful challenge  is  to  bar  him  of  a  principal  matter  concern- 
ing his  trial."  3  Inst.  27,  c.  2.  He  may,  if  he  chooses, 
peremptorily  challenge  "on  his  own  dislike,  without  show- 
ing any  cause;"  he  may  exercise  that  right  without  reason 
or  for  no  reason,  arbitrarily  and  capriciously,  Co.  Lit.  156 
b;  4  Bl.  Com.  353;  Leivis  v.  United  States,  146  U.  S.  376. 
Any  system  for  the  empanelling  of  a  jury  that  presents 
or  embarrasses  the  full,  unrestricted  exercise  by  the  ac- 
cused of  that  right,  must  be  condemned.  And,  therefore, 
he  cannot  be  compelled  to  make  a  peremptory  challenge 
until  he  has  been  brought  face  to  face,  in  the  presence  of 
the  court,  with  each  proposed  juror,  and  an  opportunity 
given  for  such  inspection  and  examination  of  him  as  is  re- 
quired for  the  due  administration  of  justice. 

Were  his  rights  in  these  respects  impaired  or  their  exer- 
cise embarrassed  by  what  took  place  at  the  trial?  We 
think  not.  The  jurors  legally  summoned  for  service  on 
the  petit  jury  were,  as  we  have  seen,  examined  in  his  pres- 
ence as  to  their  qualifications,  and  thirty-seven  were  ascer- 
tained, upon  such  examination,  to  be  qualified  to  sit  in  the 
case.  Both  the  accused  and  the  government  had  ample 
opportunity,  as  this  examination  progressed  to  have  any 
juror  who  was  disqualified  rejected  altogether  for  cause. 
A  list  of  all  those  found  to  be  qualified  under  the  law,  and 
not  subject  to  challenge  for  cause,  was  furnished  to  the 


222  Teial  Peactice  [Chap.  5 

accused  and  to  the  government,  each  sMe  being  required 
to  make  their  challenges  at  the  same  time,  and  having  no- 
tice from  the  court  that  the  first  twelve  unchallenged 
would  constitute  the  jury  for  the  trial  of  the  case.  It  is 
apparent,  from  the  record,  that  the  persons  named  in  the 
list  so  furnished  were  all  brought  face  to  face  with  the 
prisoner  before  he  was  directed  to  make,  and  while  he 
was  making  his  peremptory  challenges. 

Was  the  prisoner  entitled,  of  right,  to  have  the  govern- 
ment make  its  peremptory  challenges  first,  that  he  might 
be  informed,  before  making  his  challenges,  what  names 
had  been  stricken  from  the  list  by  the  prosecutor?  In 
some  jurisdictions  it  is  required  by  statute  that  the  chal- 
lenge to  the  juror  shall  be  made  by  the  State  before  he  is 
passed  to  the  defendant  for  rejection  or  acceptance. 
Such  is  the  law  of  Arkansas,  and  the  court  below  was  at 
liberty  to  pursue  that  method.  Mansfield's  Digest,  sec. 
2242.  And  such  is  regarded  by  some  courts  as  the  better 
practice,  even  where  no  particular  mode  of  challenge  is 
prescribed  by  statute.  State  v.  Cummings,  5  La.  Ann. 
330,  332.  But  as  no  such  provision  is  embodied  in  any 
act  of  Congress,  it  was  not  bound  by  any  settled  rule  of 
criminal  law  to  pursue  the  particular  method  required  by 
the  local  law.  The  uniform  practice  in  England,  as  ap- 
pears from  the  observations  of  Mr.  Justice  Abbott,  after- 
wards Lord  Tenterden,  in  Brandeth's  Case,  32  Howell's 
St.  Tr.  755,  was  to  require  the  accused  to  exercise  his 
right  of  challenge  before  calling  upon  the  government.  He 
said:  ''Having  attended,  I  believe,  more  trials  of  this 
kind  than  any  other  of  the  judges,  I  would  state  that  the 
uniform  practice  has  been  that  the  juryman  was  presen- 
ted to  the  prisoner  or  his  counsel,  that  they  might  have  a 
view  of  his  person;  then  the  officer  of  the  court  looked 
first  to  the  counsel  for  the  prisoner  to  know  whether  they 
wished  to  challenge  him ;  he  then  turned  to  the  counsel  for 
the  crown  to  know  whether  they  challenged  him."  p.  771. 
In  the  same  case.  Lord  Chief  Baron  Richards  said  that  he 
conceived  it  to  be  clear  that  ''it  is  according  to  the  prac- 
tice of  the  courts  that  the  prisoner  should  first  declare 
his  resolution  as  to  challenging."  p.  774.  Mr.  Justice 
Dallas  expressed  his  concurrence  in  those  views,  pp.  774, 
775.     But  the  general  rule  is,  that  where  the  subject  is  not 


Sec.  6]  The  Jtjey  223 

controlled  by  statute,  the  order  in  which  peremptory  chal- 
lenges shall  be  exercised  is  in  the  discretion  of  the  court. 
Commonwealth  v.  Piper,  120  Mass.  185;  Turpin  v.  State, 
55  Maryland,  464;  Jones  v.  State,  2  Blackford,  475;  State 
V.  Hays,  23  Missouri,  287;  State  v.  Pike,  49  N.  H.  406; 
State  V.  Shelledy,  8  Iowa,  477,  480,  504;  State  v.  Boat- 
ivright,  10  Rich.  (Law),  407;  Shuflin  v.  State,  20  Ohio  St. 
233. 

In  some  jurisdictions  the  mode  pursued  in  the  challeng- 
ing of  jurors  is  for  the  accused  and  the  government  to 
make  their  peremptory  challenges  as  each  juror,  previous- 
ly ascertained  to  be  qualified  and  not  subject  to  be  chal- 
lenged for  cause,  is  presented  for  challenge  or  acceptance. 
But  it  is  not  essential  that  this  mode  should  be  adopted. 
In  Regina  v.  Frost,  9  Car.  &  P.  129,  137,  (1839),  the  names 
of  jurors  were  taken  from  the  ballot-box,  and  each  was 
sworn  on  the  voir  dire  as  to  his  qualifications  before  be- 
ing sworn  to  try.  When  the  government  peremptorily 
challenged  one  who  had  been  sworn  on  the  voir  dire  as  to 
his  qualifications,  it  was  objected  that  the  challenge  came 
too  late,  because  the  juror  had  taken  the  book  into  his 
hand  to  be  sworn  to  try.  In  disposing  of  this  objection 
Chief  Justice  Tindal  said:  ''The  rule  is  that  challenges 
must  be  made  as  the  jurors  come  to  the  book  and  before 
they  are  sworn.  The  moment  the  oath  be  begun  it  is  too 
late,  and  the  oath  is  begun  by  the  juror  taking  the  book, 
having  been  directed  by  the  officer  of  the  court  to  do  so. 
If  the  juror  takes  the  book  without  authority,  neither  par- 
ty wishing  to  challenge  is  to  be  prejudiced  thereby." 
These  observations,  it  is  apparent,  had  reference  only  to 
the  question  whether  a  peremptory  challenge  could  be 
permitted  after  the  juror  had,  in  fact,  taken  the  book  into 
his  hand  for  the  purpose  of  being  sworn  to  try.  At  most, 
in  connection  with  the  report  of  the  case,  they  tend  to 
show  that  the  practice  in  England,  as  in  some  of  the 
States,  was  to  have  the  question  of  peremptory  challenge 
as  to  each  juror,  sworn  on  his  voir  dire  and  found  to  be 
free  from  legal  objection,  determined  as  to  him  before 
another  juror  is  examined  as-  to  his  qualifications.  But 
there  is  no  suggestion  by  any  of  the  judges  in  Frost's  case 
that  that  mode  was  the  only  one  that  could  be  pursued 
without  embarrassing  the  accused  in  the  exercise  of  his 


224  Tkial  Practice  [Chap.  5 

right  of  challenge.  The  authority  of  the  Circuit  Courts 
of  the  United  States  to  deal  with  the  subject  of  empanel- 
ling juries  in  criminal  cases,  by  rules  of  their  own,  was 
recognized  in  Lewis  v.  United  States,  subject  to  the  condi- 
tion that  such  rules  must  be  adapted  to  secure  all  the 
rights  of  the  accused.    146  U.  S.  379. 

We  cannot  say  that  the  mode  pursued  in  the  court  be- 
low, although  different  from  that  prescribed  by  the  laws 
of  Arkansas,  was  in  derogation  of  the  right  of  peremptory 
challenge  belonging  to  the  accused.  He  was  given,  by  the 
statute,  the  right  of  peremptorily  challenging  twenty 
jurors.  That  right  was  accorded  to  him.  Being  required 
to  make  all  of  his  peremptory  challenges  at  one  time,  he 
was  entitled  to  have  a  full  list  of  jurors  upon  which  ap- 
peared the  names  of  such  as  had  been  examined  under  the 
direction  of  the  court  and  in  his  presence,  and  found  to  be 
qualified  to  sit  on  the  case.  Such  a  list  was  furnished  to 
him,  and  he  was  at  liberty  to  strike  from  it  the  whole  num- 
ber allowed  by  the  statute,  with  knowledge  that  the  first 
twelve  on  the  list,  not  challenged  by  either  side,  would  con- 
stitute the  jury.  And  after  it  was  ascertained,  in  this 
mode,  who  would  constitute  the  trial  jury,  it  was  within 
the  discretion  of  the  court  to  permit  them  to  be  again  ex- 
amined before  being  sworn  to  try.  But  no  such  course 
was  suggested,  and  the  record  discloses  no  reason  why  a 
further  examination  was  necessary  in  order  to  secure  an 
impartial  jury.  The  right  of  j^eremptory  challenge,  this 
court  said,  in  United  States  v.  Marchant,  12  Wheat.  480, 
482,  and  in  Hayes  v.  Missouri,  120  U.  S.  68,  71,  is  not  of 
itself  a  right  to  select,  but  a  right  to  reject,  jurors. 

It  is  true  that,  under  the  method  pursued  in  tliis  case,  it 
might  occur  that  the  defendant  would  strike  from  the  list 
the  same  persons  stricken  off  by  the  government.  But 
that  circumstances  does  not  change  the  fact  that  the  ac- 
cused was  at  liberty  to  exclude  from  the  jury  all,  to  the 
number  of  twenty,  who,  for  any  reason,  or  without  reason, 
were  objectionable  to  him.  No  injury  was  done  if  the 
government  united  with  him  in  excluding  particular  per- 
sons from  the  jury.  He  was  not  entitled,  of  right,  to  know, 
in  advance,  what  jurors  would  be  excluded  by  the  govern- 
ment in  the  exercise  of  its  right  of  peremptory  challenge. 
He  was  only  entitled,  of  right,  to  strike  the  names  of  twen- 


Sec.  7]  The  Jury  225 

ty  from  the  list  of  impartial  JTir}Tnen  furnished  him  by  the 
court.  If  upon  that  list  appeared  the  name  of  one  who 
was  subject  to  legal  objection,  the  facts  in  respect  to  that 
juror  should  have  been  presented  in  such  form  that  they 
could  be  passed  upon  by  this  court.  But  it  does  not  ap- 
pear that  any  objection  of  that  character  was  made,  or 
could  have  been  made,  to  any  of  the  thirty-seven  jurors 
found,  upon  examination,  to  be  qualified. 

Thus,  in  our  opinion,  the  essential  right  of  challenge  to 
which  the  defendant  was  entitled  was  fully  recognized. 
And  there  is  no  reason  to  suppose  that  he  was  not  tried 
by  an  impartial  jury.  The  objection  that  the  government 
should  have  tendered  to  him  the  twelve  jurors  whom  it 
wished  to  try  the  case,  or  that  he  was  entitled  to  know 
before  making  his  challenges  the  names  of  the  jurors  by 
whom  it  was  proposed  to  try  him,  must  mean  that  the  gov- 
ernment should  have  been  required  to  exhaust  all  of  its 
peremptory  challenges  before  he  peremptorily  challenged 
any  juror.  This  objection  is  unsupported  by  the  authori- 
ties, and  cannot  be  sustained  upon  any  sound  principle. 

We  perceive  no  error  in  the  record  to  the  prejudice  of 
the  substantial  rights  of  the  plaintiff  in  error. 

Judgment  affirmed. 


Section  7.     Challenges. 

COUGHLIN  V.  PEOPLE. 

Supreme  Court  of  Illinois.    1893. 

144  Illinois,  140,  164. 

Mr.  Chief  Justice  Bailey  delivered  the  opinion  of  the 

court : 

********** 

Challenges  to  jurors,  based  upon  an  allegation  of  bias, 

favor  or  partiality,  were,  at  the  common  law,  di\dded  into 

two  classes,  viz.,  principal  challenges  and  challenges  to  the 

favor.     A  principal  challenge  was  grounded  on  such  mani- 

T.  p.— 15 


226  Tkial  Practice  [Chap.  5 

fest  presumption  of  partiality,  that  if  the  fact  alleged  was 
proved  to  be  true,  the  disqualification  of  the  juror  follow- 
ed as  a  legal  conclusion,  incapable  of  being  rebutted,  in 
case  of  a  challenge  to  the  favor,  on  the  other  hand,  the  dis- 
qualification arose  as  a  conclusion  of  fact  to  be  determined 
by  the  triers,  the  evidence  adduced  in  support  of  the  chal- 
lenge leading  to  no  presumption  which  might  not  be  over- 
come by  other  evidence. 

Among  the  various  matters  which,  at  common  law,  were 
held  to  be  principal  cause  of  challenge,  that  is,  cause  from 
which  bias  or  partiality  would  be  inferred  as  a  legal  con- 
clusion, were  these:  consanguinity  or  affinity  of  the  juror 
with  either  of  the  parties  within  the  ninth  degree ;  that  the 
juror  was  god-father  to  the  child  of  either  party,  or  e  con- 
verso;  that  the  juror  was  of  the  same  society  or  corpora- 
tion with  either  party;  or  was  tenant  or  ''within  the  dis- 
tress" of  either  party;  or  had  an  action  implying  malice 
depending  between  him  and  either  party;  or  was  master, 
servant,  counsellor,  steward  or  attorney  for  either  party; 
or  after  he  was  returned,  he  ate  and  drank  at  the  expense 
of  either  party;  or  had  been  chosen  as  arbitrator  by  either 
party.  By  most  of  the  authorities  it  was  held  to  be  ground 
of  principal  challenge,  that  the  juror  had  formed  and  de- 
clared his  opinion  touching  the  mater  in  controversy.  5 
Bac.  Abridg.  353;  3  Black  Com.  363;  2  Tidd's  Prac.  853; 
Coke  Litt.  155;  3  Burns'  Justice  of  the  Peace  (28th  Ed.) 
519;  21  Viner's  Abridg.  252;  1  Chit.  Crim.  Law,  541;  3 
Chit.  Gen.  Prac.  794;  Pringle  v.  Hulse,  1  Cow.  436,  note 
1 ;  People  V.  Bodine,  1  Denio,  304.  According  to  these 
authorities  and  others  like  them,  where  the  matter  alleged 
was  held  to  be  ground  for  principal  challenge,  all  the  chal- 
lenging party  was  called  upon  to  do  was,  to  prove  the  ex- 
istence of  the  fact  alleged  by  him  as  a  ground  of  challenge, 
and  that  being  shown,  the  incompetency  of  the  juror  fol- 
lowed as  a  necessary  legal  consequence,  and  in  such  case, 
no  inquiry  was  permitted  as  to  whether,  notwithstanding 
the  fact  shown,  he  could  sit  as  a  juror  and  render  a  fair 
and  impartial  verdict.  The  law,  from  the  fact  proved,  con- 
clusively presumed  bias,  and  permitted  no  further  inquiry. 

In  til  is  State,  triers  are  not  appointed,  according  to  the 
mode  of  procedure  at  common  law,  all  challenges,  by  our 
practice,  being  determined  by  the  court.     Nor  has  the  com- 


Sec.  7]  The  Juey  227 

mon  law  distinction  between  principal  challenges  and  chal- 
lenges to  the  favor  been  kept  up  in  this  State,  still  many  of 
the  principles  growing  out  of  that  distinction  have  been 
habitually  recognized  and  enforced.  Indeed,  most  of  the 
objections  to  jurors  which  at  common  law  were  held  to  be 
ground  of  principal  challenge,  are  held  with  us  to  be  ab- 
solute disqualifications,  that  is,  ujDon  mere  proof  of  the 
fact  alleged,  the  disqualification  follows  as  a  legal  conclu- 
sion, and  evidence  is  not  admitted  to  show  that,  notwith- 
standing the  fact  proved,  the  juror  is  really  impartial. 


STATE  V.  MYERS. 

Supreme  Court  of  Missouri.    1906, 

198  Missouri,  225. 

Gantt,  j   #  *  «  *  * 

2.  It  is  next  insisted  that  the  court  erred  in  overruling 
the  defendant's  challenge  to  the  Jurors  Lancaster,  Golden, 
Cossett,  Borgnier,  Wharton,  Miller,  Soper  and  Capps  for 
the  reason  that  the  said  jurors  on  their  voir  dire  examina- 
tion testified  that  they  had  formed  opinions  as  to  the  guilt 
or  innocence  of  the  defendant  from  having  read  a  copy  of 
the  confession  of  Frank  Hottman  published  in  the  Kansas 
City  newspapers.  To  this  assignment  of  error  the  State 
makes  two  answers:  First,  no  specific  ground  of  challenge 
was  stated  by  the  defendant  to  either  or  all  of  said  jurors ; 
and,  second,  that  the  jurors  were  not  incompetent  because 
they  had  formed  an  opinion  from  the  reading  of  the  news- 
paper report  of  the  Hottman  trial,  and  what  purported  to 
be  Hottman 's  confession  published  in  the  newspapers.  The 
record  discloses  that  upon  the  close  of  the  exauiination  of 
each  of  the  said  jurors,  the  defendant  made  the  general 
challenge,  "Defendant  challenged  this  juror;"  no  specific 
ground  of  challenge  was  given  in  either  case.  "Were  the 
challenges  sufficient  to  preserve  the  error  now  complained 
of  for  review  by  this  court?  In  Kansas  City  v.  Smart,  128 
Mo.  1.  c.  290,  it  was  said:  "The  grounds  of  challenge  to  a 


228  Trial  Practice  [Chap.  5 

juror  must  be  stated  when  it  is  offered  and  tested  on  his 
voir  dire.  The  trial  court  is  entitled  to  know  the  reason 
for  the  challenge.  {State  v.  Broivnfield,  83  Mo.  453,  454; 
Thompson  &  Merriam  on  Juries,  sec.  253,  and  cases  cited ; 

1  Thompson  on  Trials,  sec.  98.)"  In  State  v.  Taylor,  134 
Mo.  142,  Judge  Sherwood,  speaking  for  this  court,  review- 
ed the  authorities  on  this  point  and  said: 

"The  defendants  of  course,  were  entitled  to  a  full  and 
competent  panel  of  forty  men  before  announcing  their  final 
challenges,  but  in  reaching  this  stage  of  the  proceedings  it 
became  necessary  to  make  what  might  be  termed  interme- 
diary challenges.  In  making  such  preliminary  challenges 
that  is,  challenges  for  cause,  this  formula  was  observed  at 
the  close  of  the  examination  of  each  venireman:  'Counsel 
for  defendants  objected  to  this  juror  as  disqualified  and 
not  qualified  to  sit  as  a  competent  juror  in  this  cause,  and 
challenged  said  juror  for  cause.  Objection  and  challenge 
overruled,  to  which  ruling  defendant  excepted.'  Nothing 
is  better  settled  than  that  challenges  for  cause  must  be 
specifically  stated.  The  particular  cause  must  be  set  forth, 
{People  V.  Reynolds,  16  Cal.  128;  Mann  v.  Glover,  14  N.  J. 
L.  195;  Powers  v.  Presgroves,  38  Miss.  227;  Southern  Pa- 
cific Co.  V.  Rauh,  49  Fed.  696;  Drake  v.  State,  20  Atl.  747; 

2  Elliott's  Gen.  Prac,  sec.  530,  and  other  cases  there  cited.) 
The  facts  constituting  the  cause  of  complaint  were  not  given 
in  this  instance ;  the  challenge  simply  amounted  to  the  state- 
ment of  a  legal  conclusion.  The  rule  should  be  the  same 
here  as  it  is  where  general  objections  are  taken  to  the  evi- 
dence, that  it  is  incompetent,  immaterial,  etc.,  and  where  it 
is  held  that  general  objections  amount  to  nothing  more  than 
saying,  'I  object.'  Indeed,  there  seem  to  be  more  cogent 
reasons  why  specific  objections  should  be  urged  in  a  case 
of  this  sort,  where  the  question  is  as  to  the  admission  of  a 
juryman,  than  where  it  is  as  to  the  admission  of  a  piece  of 
evidence.  At  any  rate,  in  either  case,  fairness  to  the  court 
and  to  adverse  counsel  alike  demand  the  grounds  of  the 
challenge  for  cause  to  be  particularly  set  forth." 

The  doctrine  announced  in  that  case  on  this  point  was 
roafTirincd  in  State  v.  Bced,  137  Mo.  1.  c.  132;  State  v.  Mc- 
Ginvis,  158  Mo.  1.  c.  118;  and  in  State  v.  Evans,  161  Mo. 
1.  c.  108. 

Counsel  for  the  defendant,  however,  insists  that  in  this 


Sec.  7]  The  Jury  229 

case  the  ground  of  the  challenge  was  so  apparent  to  the 
court  and  the  opposite  counsel  that  they  could  not  have 
been  misled  as  to  the  ground  of  the  challenge.  AVe  are  un- 
able to  concur  in  this  view.  These  jurors  had  been  fully 
examined  as  to  their  competency,  and  among  other 
things  as  to  their  opinions  formed  from  reading  newspaper 
reports.  If  the  objection  was  intended  to  be  based  specifi- 
cally upon  the  ground  of  opinions  formed  or  expressed,  it 
should  have  been  so  stated  and  the  matter  properly  pre- 
served for  our  review. 

Moreover,  we  are  of  the  opinion  that  the  jurors  were  not 
disqualified  because  they  had  formed  an  opinion  from  read- 
ing the  newspaper  reports  of  the  Hottman  trial  and  what 
purported  to  be  Hottman 's  confession,  because  each  one  of 
said  jurors  testified  that  he  could  sit  as  a  juror  in  this  case 
and  be  governed  solely  by  the  evidence  and  render  an  im- 
partial verdict,  notwithstanding  his  opinion  formed  from 
the  reading  of  such  newspaper  reports  and  such  opinion  as 
he  had  was  based  entirely  upon  the  newspaper  reports.  Sec- 
tion 2616,  Revised  Statutes  1899,  provides:  *'It  shall  be  a 
good  cause  of  challenge  to  a  juror  that  he  has  formed  or 
delivered  an  opinion  on  the  issue,  or  any  material  fact  to 
be  tried,  but  if  it  appear  that  such  an  opinion  is  founded 
only  on  rumor  and  newspaper  reports,  and  not  such  as  to 
prejudice  or  bias  the  mind  of  the  juror,  he  may  be  sworn." 
It  is  a  well-settled  law  in  this  state  that  a  person  other- 
wise qualified  to  sit  as  a  juror  in  a  criminal  case  is  not  dis- 
qualified by  reason  of  having  formed  an  opinion  as  to  the 
guilt  or  innocence  of  the  accused,  from  reading  partial  news- 
paper accounts  of  the  homicide,  or  from  rumor  when  he 
states  on  his  voir  dire  that  he  can  give  the  defendant  a  fair 
and  impartial  trial.  [State  v.  Reed,  137  Mo.  132,  and  State 
V.  Forsha,  190  Mo.  1.  c.  323,  324.)  In  the  last  cited  case, 
certain  of  the  jurors  upon  the  voir  dire  examination  an- 
swered that  they  had  read  a  report  of  the  Bailey  trial,  in 
which  Bailey  had  been  tried  for  the  same  murder,  and  that 
they  had  read  what  purported  to  be  the  evidence  on  that 
trial,  including  the  testimony  of  the  Biggs  woman,  who  was 
present  with  Bailey  and  Forsha  when  the  murder  was  com- 
mitted, and  from  such  reading  had  formed  an  opinion  as  to 
the  guilt  of  the  defendant,  but  that  they  could  give  the 
defendant  a  fair  and  impai-tial  trial  notwithstanding  such 


230  Teial  Pkactice  [Chap.  5 

an  opinion,  and  it  was  ruled  that  they  were  not  disqualified. 
The  grounds  of  disqualification  in  that  case  were  almost 
identical  with  those  urged  in  this,  and  we  do  not  think  ren- 
dered the  jurors  incompetent. 

The  judgment  of  the  Circuit  Court  must  be  and  is  af- 
firmed, and  the  sentence  which  the  law  pronounces  is  di- 
rected to  be  carried  into  execution. 

BuKGEss,  P.  J.,  and  Fox,  J.,  concur. 


M 'DONALD  V.  STATE. 

Supreme  Court  of  Indiana.    1909, 

172  Indiana,  393. 

Myeks,  J,  Appellant  was  convicted  on  an  indictment 
charging  him  and  another  with  conspiring  for  the  purpose 
and  with  the  intent  unlawfully,  feloniously  and  designedly 
to  defraud  the  Adams  Express  Company,  by  preparing  a 
package,  securely  wrapped,  which  package  contained, 
among  other  things,  two  damp  sponges,  excelsior  and  damp 
phosphorus,  so  arranged  that  when  sufficiently  dried  the 
phosphorus  would  ignite  and  cause  such  package  and  its 
contents  to  be  burned  and  consumed ;  that,  in  pursuance  of 
the  conspiracy,  they  delivered  the  package  to  said  express 
company  to  be  transported  from  Indianapolis,  Indiana,  to 
Louisville,  Kentucky,  and  falsely  represented  that  the  pack- 
age contained  papers  of  the  value  of  $10,000;  that  the  con- 
spirators intended,  by  the  preparation  of  such  package,  and 
its  delivery  to  the  express  company,  that  the  contents  of 
the  package,  while  in  possession  of  the  company,  should 
l)e('ome  sufliciently  dry  to  ignite,  burn  and  destroy  the  pack- 
age, and  to  claim  to  have  been  damaged  in  the  sum  of  $10,- 
000,  and  fraudulently  and  unlawfully  to  make  demand  upon 
the  company  tlu^-efor,  and  cheat  and  defraud  the  latter  by 
obtaining  money  from  such  company  by  virtue  of  such  false 
pretenses. 

The  only  error  assigned  is  upon  the  overruling  of  the 
motion  for  a  new  trial. 


Sec.  7]  The  Juky  231 

The  questions  sought  to  be  presented  arise  upon  alleged 
error  in  refusing  the  peremptory  challenge  of  a  juror  on 
his  voir  dire,  and  in  giving  instructions.     The  evidence  is 
not  in  the  record.     A  bill  of  exceptions  discloses  that  in 
impaneling  the  jury,  when  the  jury  had  been  passed  back 
to  the  defendant's  counsel  for  re-examination  for  the  third 
time,  and  defendant  had  used  but  three  peremptory  chal- 
lenges, being  entitled  to  ten,  the  defendant  peremptorily 
challenged  a  juror  who  had  been  in  the  jury  box  from  the 
time  the  impaneling  of  the  jury  began,  and  the  challenge 
was  disallowed,  ''for  the  reason  that,  under  a  rule  of  said 
court,  which  had  been  in  existence  for  many  years,  the  de- 
fendant's peremptory  challenge  was  made  too  late,"  said 
rule  was  stated  by  the  court  at  the  time  as  follows:    "That 
each  side,  the  defendant  and  the  State,  is  entitled  to  examine 
each  juror  twice,  and  challenge,  if  desired,  but  cannot  chal- 
lenge a  juror  after  the  jury  has  been  passed  twice  with 
each  juror  in  the  box.    Said  rule  is  an  oral  rule,  and  is  not 
entered  in  the  records  of  the  court,  but  has  been  regularly 
enforced  for  many  years."    It  is  further  recited  that  the 
defendant  and  his  attorney,  at  the  time  of  the  challenge, 
did  not  know  of  the  rule,  but  they  did  not  inform  the  court 
on  being  advised  of  such  rule  that  either  or  both  of  them 
were  ignorant  of  it,  and  did  not  ask  that  it  be  suspended, 
nor  that  an  exception  be  made  to  its  enforcement,  on  ac- 
count of  such  ignorance.    We  think  it  quite  clear  that  there 
can  properly  be  no  such  thing  as  an  oral  rule  of  a  court. 
Rules  of  court,  when  legally  adopted  and  promulgated,  have 
the  effect  of  positive  laws.    Sec.  1443,  Burns  1908,  sec.  1323 
R.  S.  1S81  iMagnuson  v.  Billings  (1899),  152  Ind.  177 ;  State 
V.  Van  Cleave  (1902),  157  Ind.  608;  Smith  v.  State,  ex  ret. 
(1894),  137  Ind.  198;  11  Cyc.  742. 

They  ought  not  only  to  be  formally  promulgated,  but 
they  should  be  definiteiy  stated,  which  could  not  be  true  of 
a  practice  reposing  solely  in  the  breast  of  a  judge.  They 
should  be  published  and  made  known  in  some  permanent 
form,  so  that  they  might  be  known  to  all.  The  so-called  rule 
was  clearly  not  a  rule  at  all,  and  binding  upon  no  one — 
clearly  not  upon  one  who  has  no  notice  of  it.  The  statutory 
provision  (sec.  2099  Burns  1908,  Acts  1905,  pp.  584,  634, 
sec.  228),  is  as  follows:  ''In  prosecutions  for  capital  of- 
fenses, the  defendant  may  challenge,  peremptorily,  twenty 


23^  Trial  Peactice  [Chap.  5 

jurors;  in  prosecutions  for  offenses  punishable  by  imj^ris- 
onment  in  the  state  prison,  ten  jurors;  in  other  prosecu- 
tions, three  jurors.  When  several  defendants  are  tried  to- 
gether, they  must  join  in  their  challenges. 

Irrespective  of  the  so-called  rule,  was  appellant  denied 
a  statutory  right?  No  provision  is  made  by  statute  nor 
by  rule  as  to  how  or  when  the  right  shall  be  exercised,  and 
it  is  claimed  by  appellant  that  it  may  be  done  at  any  time 
until  the  jury  is  sworn.  In  some  jurisdictions  the  passing 
of  a  juror  after  he  has  been  examined,  tendered  to  and  ac- 
cepted by  the  other  party,  is  a  waiver  of  the  right  to 
challenge.  In  others,  the  right  to  challenge  is  in  the  sound 
discretion  of  the  court.  In  others,  a  party  who  accepts  a 
juror  with  knowledge  of  an  objection  waives  the  objection, 
but  if  a  cause  of  objection  is  afterward  discovered  it  is  not 
waived,  unless  he  is  guilty  of  negligence  in  not  discovering 
the  objection.  24  Cyc.  322,  323.  There  is  no  showing  made 
that  appellant  did  not  know  from  the  beginning  the  grounds 
for  the  peremptory  challenge,  and  he  stands  here  upon  the 
bare  proposition  that  he  was  entitled  to  the  challenge  in 
any  event,  without  offering  any  excuse  to  the  court,  or 
making  any  request  for  exemption  or  relief  from  the  local 
practice.  Had  any  request  for  exemption  upon  the  ground 
that  the  so-called  rule  was  void,  or  that  the  appellant  or  his 
counsel  had  no  knowledge  of  it,  been  made,  or  if  any  reason 
were  shown  why  the  juror  twice  passed  by  appellant  as 
satisfactory  had  been  discovered  to  be  unacceptable,  a  dif- 
ferent question  would  be  presented,  for,  independently  of 
the  so-called  rule,  appellant  shows  no  ground  for  relief 
from  his  own  act  and  acquiescence. 

We  think  it  cannot  be  said  that  the  right  of  challenge  is 
denied  where  it  is  restricted  to  a  defined  number  of  oppor- 
tunities for  challenge,  nor  that  there  must  be  a  definite  rule 
fixing  the  time  wlien,  or  the  manner  in  which,  it  must  be 
exercised,  for  we  think  it  may  be  controlled  either  by  a  fixed 
rule,  or  by  any  reasonable  limitation  imposed  in  any  specific 
case,  so  long  as  the  right  of  peremptory  challenge  is  not 
taken  away;  in  other  words,  that,  when  reasonable  oppor- 
tunity is  given  to  challenge,  the  spirit  of  the  statute  is  com- 
l)li(Hl  with,  and  that  it  does  not  mean  that  the  right  is  an 
open  on(!  at  all  times  until  the  jury  is  sworn,  irrespective  of 
all  else  J  that  there  is  no  good  reason  why  there  may  be  spec- 


Sec.  7]  The  Juby  233 

ulation  as  to  what  the  opposite  party  may  do,  and  the  jury 
passed  backward  and  forward  to  await  the  action  of  the 
adversary;  that  the  statute  means  that  when  the  jury  is 
passed  to  a  partj^  he  must  challenge  peremptorily  if  he 
would  challenge,  in  the  absence  of  an  after-arising  condi- 
tion, and  that,  when  the  opportunity  was  twice  given,  as 
here,  and  not  exercised,  a  party  cannot  complain,  unless 
new  conditions  arise,  calling  for  an  exception  to,  or  relaxa- 
tion of,  the  practice  or  the  order  in  the  particular  case,  and 
that  if  a  given  practice,  not  rising  to  the  dignity  of  a  rule, 
is  invoked,  as  here,  one  to  be  exempt  from  its  operation,  on 
account  of  his  ignorance  of  it,  must  seasonably  apply  to  be 
relieved  from  its  operation.  At  common  law  no  challenge 
to  the  array  or  panel  could  be  made  until  the  full  jury  was 
present.  1  Chitty,  Crim.  Law  (4th  Am.  ed.),*544.  Our 
statute  (sec.  210l' Burns  1908,  Acts  1905,  pp.  584,  634,  sec. 
230),  was  evidently  adopted  with  this  practice  in  mind,  and 
the  right  to  challenge  contemplated  the  right  to  challenge 
as  the  panel  thus  full  stood,  or  as  it  might  stand,  and  not 
that  the  right  should  be  one  arising  out  of  indefinitely  pass- 
ing the  jury  as  acceptable. 

In  Ward  v.  Cliarlestoivn  City  R.  Co.  (1883),  19  S.  C.  521, 
45  Am.  Rep.  794,"  after  a  plaintiff  had  announced  that  she 
had  no  objection  to  the  jury,  the  defendant  challenged  two 
jurors,  and  plaintiff  then  claimed  the  right  of  peremptory 
challenge.  The  court  said:  "There  was  no  denial  on  the 
part  of  the  court;  on  the  contrary  the  right  was  tendered  to 
her  at  the  proper  time,  and  having  waived  the  exercise  of 
it  then,  for  the  reasons  given  by  the  circuit  judge,  we  think 
it  was  too  late  to  demand  it  after  the  defendant  had  exer- 
cised his  right."  It  is  said  in  Mayers  v.  Smith  (1887),  121 
111.  442,  448,  13  N.  E.  216:  "Under  the  practice  at  common 
law,  no  such  case  would  arise  as  is  here  presented,  of  a 
party  reserving  his  power  of  peremptorj^  challenge  until 
after  he  had  examined  and  passed  upon  the  whole  twelve 
jurors,  or  eight  of  them,  for  causes  of  challenge,  and  then 
to  claim  the  exercise  of  such  right  of  peremptory  challenge 
as  to  jurors  who  had  previously  been  passed  upon  and  ac- 
cepted, for  the  reason  that  the  practice  there  was  to  require 
each  juror  to  be  sworn  when  his  examination  was  com- 
pleted." 

In  State  v.  Potter  (1846),  18  Conn.  166,  a  talesman  was 


234  Trial  Pbactice  [Chap.  5 

called  and  examined  by  the  counsel  for  defendant  as  to  his 
bias,  or  for  cause  of  challenge,  and  no  objection  appearing 
the  court  informed  defendant's  counsel  that  they  could 
challenge  him  peremptorily.  They  declined  to  exercise  the 
right  at  that  time,  as  the  panel  was  not  full,  and  after  it  was 
full  they  challenged  the  juror  peremptorily,  and  the  court 
inquired  whether  any  cause  then  existed  which  did  not  exist 
when  they  first  declined  the  right.  They  answered  in  the 
negative,  and  the  court  held  that  the  challenge  came  too  late, 
and  this  ruling  was  upheld.  The  reasoning,  which  is  per- 
tinent here,  is  as  follows:  ''Again,  it  is  said,  the  prisoner 
has  been  deprived  of  a  right  to  a  peremptory  challenge, 
which  he  was  entitled  to.  It  is  not  denied  that  time  and 
opportunity  were  given  to  the  prisoner  to  challenge  a  juror ; 
but  it  is  claimed,  that  he  had  not  all  the  time  the  law  allows 
him.  Dickerman,  a  talesman,  had  been  examined,  and  there 
was  no  cause  of  challenge  known  against  them.  The  court 
then  told  the  counsel,  if  they  intended  a  peremptory  chal- 
lenge, they  must  make  it  at  that  time.  They  then  had  a 
reasonable  opportunity  to  make  their  challenge;  but  they 
claim  they  may  make  it  at  their  own  time^  provided  it  is 
done  before  the  jurors  are  sworn.  The  statute,  it  is  said, 
gives  them  power  to  challenge  peremptorily  twenty  jurors 
summoned  and  impaneled, — and  much  criticism  has  been 
had  upon  the  word  'impaneled.'  It  is  claimed,  that  it  means 
the  jury  sworn  to  try  the  cause ;  and  that  until  sworn,  they 
are  not  impaneled.  *  *  *  But  it  is  said,  that  by  the  Eng- 
lish practice,  the  party  has  a  right  to  challenge  until  the 
jury  is  sworn.  There,  each  juror  is  sworn,  as  soon  as  he 
has  been  examined  and  opportunity  given  for  challenge. 
By  our  practice,  jurors  are  none  of  them  sworn  until  all 
have  been  examined,  and  an  opportunity  offered  for  chal- 
lenge." 

Under  the  statute  of  Arkansas,  the  state  in  criminal  cases 
is  required  to  exhaust  its  challenges  before  passing  a  jury 
to  the  defendant,  and  it  was  held  that  when  the  state  had 
passed  a  jury  to  the  defendant  it  was  error  to  permit  a 
jtcremptory  challenge  by  the  state.  Williams  v.  State 
(1897),  63  Ark.  527,  39  S.  W.  709. 

Where,  upon  impaneling  a  jury,  the  judge  announced  that 
he  would  require  the  defendant  to  make  his  challenges  as  he 
desired,  to  each  juror  as  called,  it  was  held  not  error  to  re- 


Sec.  7]  The  Juey  235 

fuse  a  peremptory  challenge  after  the  juror  was  sworn  and 
accepted,  and  it  was  held  that,  when  there  was  a  fair  oppor- 
tunity to  interpose  a  peremptory  challenge,  the  defendant 
cannot  complain  of  a  refusal  to  be  allowed  the  further  exer- 
cise of  the  right.  People  v.  Carpenter  (1886),  102  N.  Y.  238, 
6  N.  E.  584. 

We  are  not  unaware  that  in  the  earlier  cases  in  this  State 
and  in  other  states  it  is  held  that  the  right  of  challenge  con- 
tinues up  to  the  swearing  of  the  jury,  but  we  are  unable  to 
perceive  that  any  substantial  right  of  a  defendant  is  in- 
vaded when  an  opportunity  for  challenge  of  the  full  num- 
bers is  afforded  and  it  is  not  availed  of  up  to  the  time  the 
jury  is  sworn.  The  object  to  be  attained  is  an  impartial 
jury,  and  while  the  right  of  peremptory  challenge  is  an 
absolute  one,  it  is  not,  we  think,  so  far  so  that  it  may  be 
exercised  under  all  conditions.  If,  by  the  introduction  of 
new  men  upon  the  panel,  a  cause  for  challenge  should  arise 
— such  as  the  coming  on  of  a  person  at  such  enmity  to  one 
already  passed  that  they  could  not  work  in  harmony,  or  the 
introduction  of  anything  which  might  prejudice  the  right  of 
a  defendant — he  would  have  a  clear  right  to  exercise  his 
preference,  and  challenge  the  man  already  acceptable, 
rather  than  the  new  man,  and  the  right  would  thus  be  pre- 
served until  the  full  panel  is  complete  and  the  jury  sworn. 
He  has  a  right  to  a  full  panel  to  begin  with,  the  right  of 
canvass  and  comparison  among  jurors,  and  if  his  full  right 
of  challenge  is  preserved,  within  the  line  here  indicated,  it 
is  practically  a  right  of  peremiDtory  challenge  until  the  jury 
is  sworn,  but  it  does  not  follow  that  the  opportunity  must 
be  open  under  all  circumstances  or  conditions,  for  it  is  a 
right  which  may  be  waived.  Neither  do  we  understand  that 
the  rule  here  declared  is  in  conflict  with  the  earlier  holdings 
of  the  court,  which  upon  examination  are  found  to  be  gen- 
eral declarations  as  to  the  right  of  peremptory  challenge  ex- 
tending until  the  jury  is  sworn,  and  did  not  involve  any 
question  of  practice  as  to  the  mode  of  conducting  the  im- 
paneling of  juries,  and  of  exercising  the  right  of  challenge, 
or  of  the  right  and  power  of  courts  to  direct  the  manner  of 
its  exercise.  *  *  *  No  reversible  error  is  shown,  and  the 
judgment  is  affirmed.^ 

Wrder   of  challengef!.     "The   right   to   challenge   jurors   is   one   given    and 
secured    by  law,  and  cannot  be  taken  away  by  the  court.     Until  the  challenges 


236  Trial  Peactice  [Chap.  5 

to  which  a  party  is  entitled  under  the  statutes  are  exhausted,  the  right  extends 
to  every  juror  called.  The  juror  is  first  challenged  for  cause,  either  actual  or 
implied  bias;  then  peremptorily.  In  civil  actions,  each  party  is  entitled  to 
three  peremptory  challenges.  G.  S.  1894,  $  5370.  The  usual  practice  in  the 
selection  of  a  jury  in  such  actions  is  to  require  the  peremptory  challenges  to 
be  made  by  the  parties  alternately,  one  at  a  time,  beginning  with  defendant." 
Swanson  v.  Mendenhall,  (1900)  80  Minn.  56,  82  N.  W.  1093. 


STATE  V.  CADY. 

Supreme  Judicial  Court  of  Maine.     1888, 

80  Maine,  413, 

Peters,  C.  J.  Two  respondents  were  arraigned  together 
under  a  joint  liquor  indictment,  having  the  same  counsel  to 
answer  for  them.  The  judge  allowed  each  respondent  two 
peremptory  challenges  in  impaneling  tbe  jury,  and  when 
one  respondent  in  person  challenged  a  juror,  the  other  dis- 
puted the  challenge,  claiming  that  he  had  a  right  to  have  the 
challenged  juror  on  the  panel.  One  respondent  accepted 
and  the  other  rejected  the  juror. 

The  judge  accorded  to  them  two  challenges  each,  while 
they  were  entitled  to  two  jointly,  and  no  more.  In  capital 
cases  each  prisoner,  under  a  joint  trial,  is  entitled  to  his 
personal  challenges.  The  statute  in  that  case  prescribes 
that  ''each  person"  shall  be  so  entitled.  In  all  other  crim- 
inal cases  it  is  ''the  party"  that  is  entitled  to  the  two  chal- 
lenges. If  they  do  not  agree  upon  the  persons  to  be  ob- 
jected to,  they  lose  their  challenges.  The  presumption  is, 
where  respondents  in  criminal  cases,  not  lately  capital,  con- 
sent to  be  tried  togetlier,  or  where  the  judge  in  his  discre- 
tion orders  a  joint  trial,  that  their  interests  are  alike,  and 
differences  between  them  are  uncalled  for.  By  R.  S.,  c.  134, 
sec.  20,  it  is  provided  that  issues  in  fact  in  criminal  cases 
not  capital,  shall  be  tried  by  a  jury  drawn  and  returned  in 
the  same  manner,  and  cliallenges  shall  be  allowed,  as  in  civil 
cases.  By  E.  S.,  ch.  82,  sec.  74,  it  is  provided  that  in  civil 
cases,  and  criminal  cases  not  capital,  "each  party"  is  en- 
titled to  two  peremptory  challenges  when  a  jury  is  im- 
panclU'd  by  lot.  Party  does  not  mean  person.  Allowing 
challenges  without  cause  is  a  merely  statute  right,  not  to 


Sec.  7]  The  Jury  •  237 

be  extended  by  construction.  Wliere  defendants  are  numer- 
ous, if  each  had  personal  challenges,  it  would  require  the 
presence  of  an  impracticable  number  of  jurors.  This  ques- 
tion is  settled  by  several  authorities.  State  v.  Reed,  47  N. 
H.  4G6;  Stone  v.  Segur,  11  Allen,  568;  State  v.  Sutton,  10 
R.  I.  159.  These  cases  show  that  several  respondents  are 
but  one  party,  and  are  entitled  to  no  more  challenges  than 
one  defendant.  But  if  in  his  discretion,  the  judge  extended 
a  greater  privilege  than  the  statute  concedes,  neither  re- 
spondent is  in  a  position  to  complain  of  it.  We  have  held  in 
Snoiv  V.  Weeks,  75  Maine,  105,  that  to  a  ruling  of  a  judge, 
in  excusing  or  rejecting  a  juryman,  exceptions  will  not  lie. 
It  is  there  said:  "He  may  put  off  a  juror  when  there  is  no 
real  and  substantial  cause  for  it.  That  cannot  legally  in- 
jure an  objecting  party  as  long  as  an  unexceptionable  jury 
is  finally  obtained.  He  may  put  a  legal  juror  off.  He  can- 
not allow  an  illegal  juror  to  go  on."  This  question  was  ex- 
haustively and  learnedly  examined  in  a  case  of  piracy, 
United  States  v.  Marchant,  12  Wheat.  480,  in  which  Judge 
Story  maintains  the  same  doctrine,  and  he  there  says:  "The 
right  of  peremptory  challenge  is  not  of  itself  a  right  to 
select  but  a  right  to  reject  jurors."  He  further  remarks 
that  the  right  "enables  the  prisoner  to  say  who  shall  not 
try  him,  but  not  to  say  who  shall  be  the  particular  persons 
who  shall  try  him." 

The  objection  to  the  county  attorney's  remarks  is  with- 
out force.  He  was  expressing  his  judgment  upon  the  testi- 
mony and  giving  illustrations  of  it  in  an  unobjectionable 
manner.  He  was  not  relating  outside  facts.  The  other  ob- 
jections have  no  weight. 

Exceptions  overruled. 

Walton,  Danforth,  Virgin,  Libbey  and  Foster,  JJ.,  con- 
curred. 


238  Trial  Practice  [Chap.  5 

Section  8.     Discharge  of  Juror. 
STATE  V.  DAVIS. 

Supreme  Court  of  Appeals  of  West  Virginia.    1888. 
31  West  Virginia,  390. 

Johnson,  President  : 

On  the  20th  day  of  February,  1888,  William  Davis  was,  in 
the  Circuit  Court  of  Ritchie  county,  indicted  for  maliciously, 
etc.,  stabbing  one  Creed  Wilson,  with  intent  to  maim,  dis- 
figure, disable,  and  kill  him.  The  prisoner  moved  to  quash 
the  indictment,  which  motion  was  overruled,  and  the  pris- 
oner pleaded  not  guilty.  The  jury  was  sworn  on  the  24th 
day  of  February  to  try  the  issue.  It  appears  from  an  order 
entered  on  the  next  day  that  '*it  appearing  to  the  court 
that  Peter  G.  Six,  a  juror,  is  unable  to  perform  his  duty, 
George  W.  Hammer,  a  qualified  juror,  was  selected,  tried, 
and  sworn  in  his  place,"  etc.  The  prisoner  objected  to  the 
swearing  of  a  new  juror,  which  objection  was  overruled. 


•  *  *  * 


The  prisoner  moved  the  court  to  discharge  him,  because 
he  had  not  been  tried  before  a  proper  jury.  He  also  moved 
in  arrest  of  judgment,  and  also  for  a  new  trial ;  which  sev- 
eral motions  were  respectively  overruled,  and  the  court  pro- 
nounced judgment  on  the  verdict,  and  sentenced  the  pris- 
oner to  confinement  in  the  penitentiary  for  the  term  of  two 

years. 

********** 

Upshur,  Judge,  in  delivering  the  opinion  of  the  court  in 
Fell's  Case,  9  Leigh  617,  said,  after  reviewing  a  number  of 
FiUglish  and  American  cases:  ''One  general  rule  is  de- 
ducible  from  all  the  cases,  which  is  that  the  court  may  dis- 
charge the  jury  whenever  a  necessity  for  so  doing  shall 
arise;  but  what  facts  and  circumstances  shall  be  considered 
as  constituting  such  a  necessity  can  not  be  reduced  to  any 
general  rule.  The  power  to  discharge  is  a  discretionary 
power,  which  the  court,  as  in  all  other  cases  of  judicial  dis- 
cretion, must  exercise  soundly  according  to  the  circum- 
*:tances  of  the  case.  The  object  of  the  law  is  to  obtain  a 
fair  and  just  verdict,  and,  whenever  it  shall  appear  to  the 


Sec.  8]  The  Jury  239 

court  that  the  jury  impaneled  can  not  render  such  a  ver- 
dict, it  ought  to  be  discharged  and  another  jury  impaneled. 
This  is  emphatically  the  case  of  necessity  contemplated  in 
the  authorities  we  have  referred  to ;  as  where  the  prisoner 
became  too  sick  to  attend  to  his  defense  or  one  of  the  jury 
was  rendered  physically  unable  to  discharge  his  duty.  There 
are  other  cases  of  necessity  equally  strong,  one  of  which 
probably  is  where  a  juror,  from  the  peculiar  condition  of  his 
mind  and  feelings,  is  manifestly  disqualified  from  bestow- 
ing upon  the  case  that  attention  and  impartial  considera- 
tion which  is  necessary  to  a  just  verdict.  *  *  *  The  actual 
sickness  of  a  juror,  and  his  consequent  inability  to  discharge 
his  duty,  is  admitted  on  all  hands  to  present  such  a  neces- 
sity. In  the  case  before  us,  the  juror  was  not  actually  sick, 
but  there  was  every  reason  to  believe  that  he  would  become 
so  through  longer  confinement.  Was  the  court  bound  to 
wait  till  the  case  actually  occurred!  We  think  not.  *  *  * 
A  necessity  not  less  strong  was  presented  by  the  situation 
of  the  wife  of  another  juror.  If  the  object  of  the  trial  be, 
as  it  undoubtedly  is,  to  obtain  a  fair,  just  and  impartial  ver- 
dict, there  can  be  but  little  prospect  of  such  a  result  from 
the  constrained  and  reluctant  action  of  minds  wholly  ab- 
sorbed in  the  deep  and  peculiar  interest  of  their  domestic 
relations."  It  was  held  that  it  would  be  improper,  under 
such  circumstances,  to  discharge  the  prisoner. 

Here  it  appears  from  the  record  that  the  juror,  Six,  was 
informed  that  his  son  had  just  died.  It  would,  indeed,  be  a 
stout-hearted  father  who  could,  unmoved,  receive  news  of 
the  death  of  a  child.  Some  men  could  receive  such  news 
and  proceed  with  their  work  with  steady  nerve  and  mind 
clear  and  strong ;  but  observation  teaches  us,  if,  indeed,  we 
have  not  learned  from  sad  experience,  that  the  natural  re- 
sult of  information,  suddenly  imparted  to  a  father,  of  the 
death  of  a  child,  is  to  unfit  him,  for  the  time,  to  attend  to 
business.  It  would  have  been  cruel  to  have  required  the 
juror  to  remain  on  the  jury  under  such  circumstances.  His 
grief  would  naturally  unfit  him  for  the  discharge  of  such  an 
important  duty.  And  if,  as  the  court  said  in  Fell's  Case, 
the  object  of  the  trial  is  to  obtain  a  fair,  just  and  impartial 
verdict,  there  could  be  little  prospect  of  it  under  such  cir- 
cumstances. *  *  * 


240  Tbial  Practice  [Chap.  5 


The  statute  says — and  it  is  in  perfect  accord  with  the 
principles  of  the  common  law — that  if  a  juror,  after  he  is 
sworn,  be  unable  from  any  cause  to  perform  his  duty,  the 
court  may,  in  its  discretion,  cause  another  qualified  juror 
to  be  sworn  in  his  place.    Code,  ch.  159,  sec.  1.  '^  ^  ^ 


#  # 


Both  on  principle  and  authority,  the  court,  in  this  case, 
did  not  err  in  discharging  the  juror  Six,  for  the  reason 
shown  by  the  record,  because  a  manifest  necessity  existed 
therefor.  Neither  did  the  court  err  in  ordering  the  trial  to 
proceed  with  the  jury  as  constituted  after  the  substitution 
of  the  juror  Hammer  for  Six,  as  he  had  had  his  legal  chal- 
lenge to  the  original  jurors  and  to  the  substituted  juror. 
Every  right  guaranteed  to  him  by  the  constitution  was 
granted  him.  *  *  * 

*  *  *  The  prisoner  was  not  prejudiced  by  the  fact  that 
the  juror  Hammer  had  not  heard  everything  that  the  other 
jurors  heard.  When  the  substituted  juror  was  sworn,  the 
trial  commenced  de  novo.  Then  the  prosecuting  attorney 
introduced  the  evidence  just  as  if  the  jury  was  entirely  dif- 
ferent from  what  it  was  before,  and  the  defence,  of  course, 
had  the  right  to  bring  forward  all  the  evidence  it  could.  We 
can  not  perceive  how  the  prisoner  was  prejudiced  by  this. 
Certainly,  nothing  appears  in  the  record  to  his  prejudice  in 
this  respect.  The  court  did  not,  therefore,  err  in  refusing 
to  exclude  the  evidence  of  the  State. 

There  is  no  error  in  the  judgment  of  the  Circuit  Court 
and  it  is  affirmed. 

Affirmed. 


Sec.  9]  The  Juey  241 

Section  9.     Oath  Administered. 

WELLS  V.  SMITH. 

Supreme  Court  of  Appeals  of  West  Virginia.    1901. 

49  West  Virginia,  78. 

Brannon,  President. — This  is  an  action  of  ejectment  *  *. 
It  resulted  in  a  verdict  and  judgment  for  the  plaintiffs. 

The  defendant  complains  of  the  overruling  a  motion  in 
arrest  of  judgment.  The  ground  for  this  motion  is  that 
the  oath  of  the  jury  was  not  such  as  the  law  requires.  The 
record  says  that  a  jury  came  "who  were  the  duly  tried  and 
sworn  the  truth  to  speak  upon  the  issue  joined  in  this  case ;" 
whereas  it  should  have  been  sworn,  ''You  shall  well  and 
truly  try  the  issue  joined  between  Charles  E.  Wells  and 
others,  plaintiffs,  against  H.  L.  Smith,  defendant,  and  a 
true  verdict  give  according  to  the  evidence."  The  oath  to  try 
the  issue  joined  is  good  in  civil  cases.  It  is  the  oath  given 
as  proper  in  that  excellent  work  of  late  date,  Encylopaedia 
of  Pleading  and  Practice,  Vol.  12,  p.  516.  What  does  the 
oath  in  this  case  lack?  Only  the  injunction  to  try  the  issue 
and  render  a  verdict  according  to  the  evidence.  Of  course, 
the  omission  to  enjoin  the  jury  to  render  a  verdict  is  im- 
material, and  as  to  the  omission  of  the  oath  to  enjoin  the 
jury  to  render  a  verdict  according  to  the  evidence,  that  is 
immaterial,  since  the  law  requires  a  jury  to  pass  on  tlie 
evidence,  to  respond  to  facts  shown  by  the  evidence.  By 
what  else  could  the  jury  try  the  case?  It  is  necessarily  to 
be  understood,  in  a  legal  point  of  view,  that  the  trial  must 
be  by  evidence.  Even  in  a  felony  case  the  entry  would  be 
sufficient.  In  Lawrence's  Case,  30  Grat.  845,  the  order  book 
showed  that  the  jury  ''were  sworn  the  truth  of  and  upon 
the  premises  to  speak,"  and  it  was  held  good.  The  court 
said  that  while  the  oath  in  felony  cases,  "You  shall  well  and 
truly  try  and  true  deliverance  make  between  the  common- 
wealth and  the  prisoner  at  the  bar,  whom  you  shall  have 
in  charge,  and  a  true  verdict  give  according  to  the  evidence. 
So  help  you  God," — is  the  correct  oath,  still  no  law  pre- 
scribed it,  common  or  statute,  and  one  of  the  same  import 
T.  p.— 16 


242  Tkial  Peactice  [Chap.  5 

would  be  sufficient,  and  that  it  was  not  necessary  that  the 
full  form  of  the  oath  should  be  literally  inserted  in  the  rec- 
ord, but  it  would  be  sufficient  that  it  should  therein  simply 
appear  that  the  jury  was  duly  sworn  according  to  law.  The 
court  said  that  the  statement  of  the  record  as  to  the  oath 
was  obviously  not  the  form  of  oath  actually  administered, 
but  was  merely  intended  to  state  the  fact  that  the  jury  was 
sworn.  So  we  can  say  in  this  case.  *  *  *  I  must  not  be  under- 
stood as  saying  that  if  the  record  shows  the  oath  actually 
administered  in  full,  and  it  is  not  substantially  good,  it  is 
not  error,  but  I  mean  to  hold  that  unless  it  so  appears  a  mere 
statement  of  the  record,  in  any  words,  attesting  the  swear- 
ing of  the  jury,  both  in  civil  and  criminal  cases,  is  sufficient. 
But  this  case  being  a  civil  case  I  think  the  oath  shown  by 
the  record,  even  if  regarded  as  t'he  full  literal  oath,  is  good, 
though  we  are  not  compelled  to  so  regard  it,  but  may  pre- 
sume that  the  injunction  to  well  and  truly  try  the  case 
according  to  the  evidence  was  really  in  the  oath  adminis- 
tered. I  just  now  discover  that  State  v.  Ice,  34  W.  Va.  244, 
so  holds.  Ample  authority  so  settles  the  point.  See  12 
Ency.  PI.  and  Prac.  522,  where  it  is  stated  that  the  better 
entry  is,  not  to  give  the  oath  in  full  but  simply  state  that 
the  jury  was  duly  sworn  according  to  law.  I  think  so.  Can 
we  say  that  the  oath  in  this  case  is  not  substantially  good? 
**If  the  oath  is  substantially  in  the  prescribed  or  recognized 
form,  it  will  be  sufficient,  and  a  literal  adherence  to  form 
will  not  be  required."  12  Ency.  PI.  and  Prac.  518.  Mere 
technicality  should  not  be  allowed  such  sway  as  is  proposed 
in  this  case. 

There  is  another  reason  why  this  point  should  not  reverse 
the  trial.  The  defendant  had  right  to  object  to  the  oath 
when  administered  and  to  demand  a  proper  one,  if  not  sat- 
isfied with  the  one  used,  and  he  could  not  sit  silent,  take  his 
chances  of  a  verdict  in  his  favor,  and  then  take  advantage 
of  such  a  defect.  He  could  have  shown  the  oath  actually 
administered  by  bill  of  exceptions,  and  must  do  so,  as  held 
in  Lawrence's  Case,  30  Grat.  650,  and  in  Dysen  v.  State,  26 
Miss.  32,  and  many  other  cases  cited  in  1  Thompson  on 
Trials,  s.  108.  I  will  add  that  an  oath  such  as  that  in  this 
case,  to  try  tlio  issue  joined,  was  held  good  on  principle  and 
authority  in  civil  cases.  Pierce  v.  Tate,  27  Miss.  283; 
Windham  v.  Williams,  Id.  313.    We  affirm  the  judgment. 

Afirmed, 


CHAPTER  VI. 
THE  RIGHT  TO  OPEN  AND  CLOSE. 

JOHNSON  V.  JOSEPHS. 

Supreme  Judicial  Court  of  Maine.    1884. 

75  Maine,  544. 

Trespass  in  which  the  plaintiff  claimed  damages  in  the 
sum  of  two  thousand  dollars  for  an  alleged  assault  and  bat- 
tery by  the  defendant  upon  the  person  of  the  plaintiff. 

The  pleadings  and  the  question  presented  to  the  law  court 

are  stated  in  the  opinion. 

********** 

Petees,  C.  J.  Plaintiff  sued  for  an  assault  and  battery. 
Defendant  pleaded  ''son  assault  demesne,"  and  plaintiff 
replied  " de  injuria."  Under  these  pleadings  the  defendant, 
against  the  plaintiff's  protest,  was  allowed  by  the  court  "to 
open  and  close."  This  was  contrary  to  what  we  regard  as 
the  well  settled  practice  in  this  state.  The  rule  of  practice 
and  of  law  in  this  state,  is  that,  when  a  plaintiff  has  to  prove 
anything  to  make  out  a  full  and  perfect  case,  he  is  entitled 
to  open  and  close.  The  test  is,  whether  he  need  put  in  any 
proof  of  any  part  of  his  claim.  In  this  case,  the  burden  fell 
upon  him  to  prove  the  extent  of  the  damages  sustained.  It 
is  a  case  of  unliquidated  damages,  and  not  a  case  of  nom- 
inal damages,  or  of  damages  to  be  assessed  by  computation 
merely. 

The  plaintiff  certainly  had  something  to  prove.  The 
counsel  for  the  defendant  contends  that  the  defendant's 
plea  confessed  everything  alleged  against  him.  "We  think 
not.  It  did  not  admit  more  than  a  general  demurrer  or  a 
default  would  admit,  and  that  would  be  nominal  damages 
only.  Hanley  v.  Sutherland,  74  Maine,  212,  and  cases  cited. 
The  plea  of  "son  assault  demesne"  is  but  a  qualified  ad- 
mission of  the  injury  alleged.  The  point  may  be  tested  in 
this  way:     Suppose  that,  after  the  pleadings  were  com- 

243 


244  TffE  JuEY  [Chap.  6 

pleted  the  defendant  had  rested  without  any  proof  what- 
ever. Judgment  wonld  go  for  the  plaintiff,  no  doubt.  But 
for  how  much?  Would  the  court  order  judgment  for  the 
sum  of  one  thousand  dollars,  the  amount  of  damages  which 
the  plaintiff  alleges,  or  would  the  plaintiff  be  required  to 
prove  the  damages?  Can  it  be,  that  a  plea  of  son  assault 
demesne  admits  any  amount  of  damages  which  a  plaintiff 
inserts  in  the  ad  damnum  of  his  writ?  If  so,  a  plaintiff  may 
prevent  the  plea  in  many  cases  by  alleging  exaggerated 
damages. 

In  fact,  the  defendant  cautiously  worded  his  plea  to  avoid 
admitting  the  whole  injury  charged.  He  says  he  did  ''un- 
avoidably a  little  beat,  bruise  and  ill-treat  the  said  plain- 
tiff." One  of  the  issues  of  the  case,  therefore,  was  whether 
the  beating  was  little  or  much.  The  declaration  for  an  as- 
sault and  battery  is  usually  formal  and  general.  Under  the 
common  form,  in  our  practice,  the  plaintiff  may  prove 
malice  as  the  foundation  for  punitive  damages.  The  dam- 
ages are  necessarily  a  matter  of  uncertainty.  The  judicial 
discretion  of  a  jury  can  be  invoked  by  a  plaintiff  to  settle 
them,  and  whatever  the  pleadings,  if  in  the  common  form, 
there  must  be  proof  of  the  nature  and  extent  of  the  injury 
sustained.  We  think  there  might  be  great  abuse  of  the 
practice,  if  the  ruling  in  this  case  be  sustained.  Defendants 
would  adopt  the  plea  of  self  defence,  in  order  to  have  th'3 
last  word,  in  cases  where  no  real  question  exists  but  to  have 
the  amount  of  damages  ascertained.  It  is  not  the  natural 
order  of  things  to  hear  the  accused  before  the  accuser  is 
lieard. 

In  the  trial  of  this  cause  there  was  testimony  upon  both 
sides.  No  one  would  doubt  that  the  plaintiff  proceeded  with 
testimony  after  the  defendant's  side  was  closed.  The  de- 
fendant had  the  privilege  of  closing  the  argument  upon  the 
<luestion  of  the  extent  of  the  plaintiff's  injury  and  amount 
of  damages  thereby  sustained.  To  take  the  lead,  a  defend- 
ant "must  admit  all  the  facts  necessary  to  be  proved  by 
the  plaintiff,"  and  not  merely  a  prima  facie  case,  Spauld- 
iuff  V,  Hood,  8  Cush,  602.  "When  anything  is  left  for  the 
])laintiff  to  show,  he  has  the  right  to  begin  and  close," 
Thurston  v,  Kennett,  2  Foster,  N,  H,  151;  Belknap  v,  Wen- 
dell, 1  Foster,  N,  li,  175.  The  latest  authorities  sustain  the 
])hiintiff's  view  upon  this  question.     See  1  Green,  Ev.  sec. 


Chap.  6]  The  Right  to  Open  and  Close  245 

sec.  75,  76,  and  English  and  American  cases  cited  in  notes 
of  the  latest  editions.  Lunt  v.  Wormell,  19  Maine,  100; 
Saivyer  v.  Hopkins,  22  Maine,  276;  Washington  Ice  Co,  v. 
Webster,  68  Maine,  449 ;  Page  v.  Osgood,  2  Gray,  260 ;  Dorr 
V.  Tremont  National  Bank,  128  Mass.  359;  Carter  v.  Jones, 
6  C.  &  P.  64;  Mercer  v.  WJiall,  5  Ad.  &  El.  N.  S.  447. 

The  favor  extended  to  the  defendant  deprived  the  plain- 
tiff of  a  valuable  legal  right — one  highly  prized  by  advo- 
cates. It  did  not  rest  in  the  discretion  of  the  trial  judge  to 
grant  it.  The  rule  should  be  fixed  and  certain,  and  not  be 
subject  to  the  varying  judgments  of  different  judges.  The 
bar  should  know  what  the  rule  is,  and  that  it  may  be  de- 
pended upon. 

Exceptions  sustained^ 

Walton,  Virgin,  Libbey  and  Symonds,  J.  J.,  concurred. 

lEule  the  same  as  to  Evidence  and  Argument.  "The  general  rule  is  that 
the  order  of  argument  follows  the  burden  of  proof;  and  whoever  opens  the 
case  with  the  evidence,  if  he  has  a  right  to  so  open,  has  the  same  right  in  the 
argument:"  Abel  v.  Jarrett,  (1897)  100  Ga.  732,  28  S.  E.  453.  To  the 
same  effect:—  D.  M.  Osborne  &  Co.  v.  Kline,  (1885)  18  Nebr.  344,  25  N. 
W.  360;  O'Connor  v.  Henderson  Bridge  Co.,  (1894)  95  Kv.  633,  27  S.  W. 
251;  Lowe  v.  Lowe,  (1875)  40  la.  220;  Palmer  v.  Adams,  (1*893)  137  Ind.  72, 
36  N.  E.  695. 


BUZZELL  V.  SNELL. 

Superior  Court  of  Judicature  of  New  Hampshire.    1852. 
25  New  Hampshire,  474. 

Assumpsit.  The  declaration  contained  three  counts,  for 
the  j)rice  of  a  sleigh.  One  upon  an  account  annexed  for  $26, 
the  others  special.  One  of  these  alleged  a  sale  of  the  sleigh 
for  $26,  and  a  contract  to  pay  for  it  275  bushels  of  char- 
coal, of  a  certain  quality,  to  be  delivered  at  a  specified  place 
and  time,  or  to  pay  $26  in  money. 

The  defendant  pleaded  the  general  issue  to  the  whole 
declaration,  except  the  sum  of  seven  dollars  and  ten  cents, 
and  as  to  that  sum  pleaded  a  tender,  and  issues  were  joined. 

The  coiirt  ruled  that  upon  these  pleadings  the  defendant 
was  not  entitled  to  the  opening  and  close  in  the  trial  of  the 
c£ise,  and  the  defendant  excepted. 


246  Tkial  Peactice  [Chap.  6 

The  plaintiff  offered  evidence  tending  to  sustain  his  spe- 
cial count,  and  the  proof  on  both  sides  was  that  the  sleigh 
was  called  $26  in  the  trade,  and  that  the  payment  was  to 
be  275  bushels  of  coal,  or  $26  in  money.  The  defendant  did 
not  contend  that  he  had  performed  the  original  contract, 
whatever  it  was,  but  endeavored  to  show  that  200  bushels 
of  coal  had  been  delivered  and  accepted  in  part  payment, 
the  plaintiff  at  the  same  time  agreeing  to  receive  money  for 
the  residue;  but  upon  this  point  the  testimony  was  conflict- 
ing. The  court  instructed  the  jury  that  the  plaintiff  was 
not  bound  to  accept  the  coal,  unless  it  was  according  to  the 
contract  in  respect  to  time,  quantity  and  quality,  but  he 
might  waive  his  rights  in  any  of  these  particulars ;  and  that 
after  the  plaintiff  had  proved  a  contract  for  275  bushels  of 
coal,  or  the  money,  if  the  defendant  would  maintain  that  200 
bushels  had  been  received  in  jDayment  pro  tanto,  the  burden 
of  proof  was  upon  him  to  show  the  fact.  To  this  instruc- 
tion, in  relation  to  the  burden  of  proof,  the  defendant  ex- 
cepted. 

Bell,  J.  The  principal  question  presented  by  this  case 
is  upon  the  right,  claimed  by  the  defendant,  to  open  the  case 
to  the  jury,  and,  consequently,  to  make  the  closing  argu- 
ment. The  question  whether  the  plaintiff  or  the  defendant 
has  the  right,  almost  necessarily  arises  at  the  commence- 
ment of  the  hearing,  and  before  the  court  can  have  any 
opportunity  to  know  anything  of  the  nature  or  character  of 
the  questions  which  are  to  arise  upon  the  trial,  except  as 
they  are  disclosed  by  the  pleadings.  The  right  is,  there- 
fore, usually  held  to  de])end  upon  the  state  of  the  pleadings. 
''The  party  who  asserts  the  affirmative  of  the  issue  is  en- 
titled to  begin  and  to  reply."  1  Green.  Ev.,  sec.  74.  "If 
the  record  contains  several  issues,  and  the  plaintiff  holds 
the  affirmative  in  any  one  of  them,  he  is  entitled  to 
begin."    lb. 

This  question  was  considered,  and  the  cases  collected  and 
examined,  in  the  case  of  Belknap  v.  Wendell,  1  Foster's 
rjep.  175.  Gilchrist,  C.  J.,  there  lays  down  the  rule  thus; 
"The  plaintiff  begins  and  has  the  right  of  reply,  in  all  cases 
where  the  defendant's  pleadings,  or  any  part  of  them,  deny 
llie  wliole  or  any  part  of  the  plaintiff's  pleadings,  so  as  to 
leave  any   arfinnnlive  allegation  on   his   side  to  be  estab- 


Chap.  6]  The  Right  to  Open  and  Close  247 

lislied  by  proof."  ''And  this  (he  says)  is  uniformly  the 
case,  unless  the  defendant,  by  the  form  of  pleading,  admits 
the  plaintiff's  right  of  action,  but  for  the  cause  which  he 
sets  up  in  his  plea,  no  proof  in  such  case  being  required  on 
the  part  of  the  plaintiff."  This  rule  is  in  accordance  with 
the  practice  in  this  State.  We  are  not  aware  that  there  has 
ever  been  any  difference  of  ruling  in  the  common  pleas,  or 
of  decisions  in  this  court,  or  that  any  exception  has  ever 
been  admitted  in  this  respect. 

This  case  comes  clearly  within  the  rule  in  Belknap  v. 
Wendell,  since  the  affirmative  of  one  of  the  issues  is  upon 
the  plaintiff.  Two  pleas  are  filed.  Tlie  first  is  the  general 
issue  as  to  all  the  plaintiff's  claim,  except  the  sum  of  seven 
dollars  and  ten  cents.  Upon  this  issue,  it  is  the  duty  of  the 
plaintiff  to  go  forward,  and  introduce  proof  of  the  facts 
alleged  in  his  declaration;  and  if  he  does  not,  the  case  of 
course  must  end  in  a  non-suit.  Before  this  is  done,  he  can- 
not call  upon  the  defendant  to  take  any  step  in  the  cause. 

The  second  plea  alleges  a  tender  as  to  seven  dollars  and 
ten  cents.  Upon  this  the  burden  of  proof  is  upon  the  de- 
fendant. But  it  is  suggested  that  as  a  plea  of  tender  is  an 
admission  of  the  plaintiff's  cause  of  action,  as  set  forth  in 
his  declaration,  this  has  the  effect,  substantially,  to  change 
the  issue  upon  the  first  plea.  We  do  not  so  regard  it.  The 
right,  by  the  rule  in  Belknap  v.  Wendell,  depends  upon  the 
form  of  the  pleading,  and  is  determined  by  the  fact  that  the 
affirmative  of  one  of  the  issues  is  upon  the  plaintiff,  and  this 
is  in  no  way  affected  by  the  circumstance  that  the  plaintiff 
has  greater  or  less  facilities  for  making  the  required  proof. 
Any  material  fact  may  be  proved  by  the  admissions  of  the 
adverse  party;  and  it  does  not  change  the  burden  of  proof 
upon  the  pleadings,  that  the  defendant  has  admitted  the 
claim,  which  he  formally  denies  by  his  plea.  Nor  is  it  in  any 
way  material  in  what  form  the  admission  is  made,  so  long 
as  he  chooses  to  deny  it  upon  the  record,  and  join  issue 
upon  it. 

The  admission  is  evidence  of  a  matter  of  fact,  to  be  de- 
cided by  the  jury,  and  the  plaintiff,  to  sustain  his  case,  must 
lay  that  evidence  before  them.  In  this  respect,  the  admis- 
sion of  the  contract  declared  upon,  implied  from  the  pay- 
ment of  money  into  court,  stands  upon  the  same  ground  as 
the  admission  of  the  signature  of  a  written  instrument  de- 


248  Teial  Peactice  [CLap.  6 

clared  upon,  resulting  from  a  neglect  to  gi\e  notice  upon  the 
docket  of  the  denial  of  such  signature,  according  to  the  gen- 
eral rule  of  the  court.  In  actions  upon  promissory  notes, 
the  proof  of  the  signature  of  the  instrument  is  all  that  the 
plaintiff  is  required  to  make,  upon  the  general  issue:  and 
this  is  admitted  under  the  rule  by  the  want  of  notice  of  a 
denial,  upon  the  docket.  It  has  never  occurred  to  any  one 
to  imagine  that  this  admission  changed  the  burden  of  proof 
upon  the  general  issue,  or  gave  to  the  defendant  a  right  to 
begin  and  to  reply. 

This  question,  substantially,  arose  in  the  case  of  Gump 
V.  Smith,  11  N.  H.  Rep,  48.  The  general  issue  was  pleaded, 
with  a  brief  statement.  A  fact,  necessary  to  be  proved  by 
the  plaintiff,  was  admitted  by  the  statement.  But  the  court 
held  that  the  general  issue  imposes  upon  the  plaintiff  the 
burden  of  making  out  his  whole  case,  before  the  matter  of 
the  brief  statement  comes  in  issue  at  all;  and  the  same,  the 
court  say,  is  the  result  where  special  pleas  are  pleaded  with 
the  general  issue.  This  decision  is  but  a  recognition  of  the 
common  principle,  that  where  several  pleadings  are  filed, 
they  are  to  be  tried  precisely  as  if  each  was  pleaded  alone; 
and  the  admissions,  expressed  or  implied,  in  one  plea,  can- 
not be  used  as  evidence  "against  the  party  upon  otlier  issues. 
alley  V.  Jenness,  2  N.  H.  Rep.  89;  Chapman  v.  Sloan,  2  N. 
H.  Rep.  467. 

The  plea  of  tender  is  of  course  not  evidence  upon  the 
general  issue  for  any  purpose,  but  the  independent  fact  of 
the  payment  of  money  into  court  with  the  plea  of  tender,  is 
an  admission  of  the  contract  declared  on;  but  this  fact  is  to 
be  proved  by  the  plaintiff,  like  any  other  admission.  Upon 
the  pleadings  in  such  case,  nothing  appears  which  changes 
tlie  ordinary  effect  of  the  general  issue. 

The  question  presents  itself  under  an  entirely  different 
aspect  from  that  it  would  have  had,  if  the  defendant,  in- 
stead of  pleading  the  general  issue,  had  pleaded  what  seems 
to  have  been  his  true  defence,  either  payment  or  a  delivery 
and  accptance  pro  tanto  of  coal,  of  a  different  quality,  and 
l)erha])H  at  a  different  place.  In  that  case,  the  burden  of 
proof  upon  both  pleas  would  have  been  upon  the  defendant, 
and  the  right  to  begin  and  close,  would  have  belonged  to 
liirii.  This  would  have  been  apparent  at  once  upon  the  rec- 
ord, but  upon  the  general  issue,  it  cannot  appear  that  the 


Chap.  6]  The  Right  to  Open  and  Close  249 

defence  is  payment  or  its  equivalent.  Nor  does  it  seem  to 
us  that  it  can  ever  be  desirable  to  substitute  for  the  simple 
inquiry  by  which  the  courts  now  determine  the  right  to 
begin, — the  form  of  the  issues, — any  inquiries  as  to  what 
are  the  real  points  in  controversy. 

The  second  point  raised  by  the  exception,  as  to  the  duty 
of  the  defendant  to  prove  the  defence  of  payment,  if  he 
relies  upon  it,  is  admitted  by  the  defendant  to  have  beea 
correctly  decided  in  itself;  but  it  is  insisted  upon  to  show 
the  incorrectness  of  tlie  ruling  as  to  the  right  to  open  and 
close.  It  surely  could  not  be  expected  that  the  court  would 
hold  that  the  plaintiff  was  bound  to  prove  the  defendant's 
plea,  nor  that  it  was  to  be  taken  for  granted  without  proof, 
or  the  plaintiff  required  to  disprove  it.  In  our  judgment, 
there  was  no  inconsistency  in  holding  that  upon  the  plead- 
ings, as  they  were  drawn,  the  burden  of  proof  was  upon  the 
plaintiff,  and  that  he  was,  therefore,  entitled  to  begin  and 
close;  and  in  holding  afterwards,  when  the  defendant  had 
taken  upon  himself  his  defence,  that  if  the  defendant  relied 
not  upon  a  denial  of  the  plaintiff's  claim,  but  upon  a  dis- 
charge of  that  claim  by  new  and  independent  facts,  that  the 
burden  was  upon  him  to  prove  his  defence.  This  point  was 
before  the  court  in  BelJcnap  v.  Wendell,  where  the  court  say, 
''The  burden  of  proof  may  shift  during  the  trial.  In  a  suit 
upon  a  written  contract,  the  plaintiff  produces  his  evidence, 
proves  the  signature  of  the  defendant,  and  stops;  the  de- 
fendant then  alleges  payment,  or  other  matter  of  defence; 
the  burden  of  proof  is  upon  him,  and  yet  the  plaintiff  opens 
and  closes  the  argument." 

Judgment  is  to  be  rendered  upon  the  verdict,  *  *  * 


250  Trial  Practice  [Chap.  6 

LAKE  ONTARIO  NATIONAL  BANK  V.  JUDSON. 

Court  of  Appeals  of  Neiv  York.    1890. 
122  New  York,  278. 

This  action  was  brought  to  recover  the  amount  of  four 
promissory  notes,  which,  by  the  complaint,  the  plaintiff  al- 
leged were  made  by  the  defendant  payable  to  the  order  of 
E.  M.  Fort,  delivered  to  the  payee,  and  by  him  endorsed, 
and  transferred  to  the  plaintiff.  The  complaint  also  alleged 
that  the  defendant  was  indebted  to  respondent  in  a  sum 
stated,  for  money  advanced  on  his  checks  drawn  upon  the 
plaintiff  for  an  amount  in  excess  of  his  deposits  there. 

The  defendant,  by  his  answer,  alleged  that  he  and  Fort 
purchased  of  the  plaintiff  some  canal  boats ;  that  they  were 
induced  to  make  the  purchase  by  the  warranty  of  the  plain- 
tiff, particularly  specified,  and  gave  for  them  their  joint 
notes ;  that  afterward  the  plaintiff  took  up  those  notes,  and 
the  makers  gave  their  individual  notes  for  their  respective 
interests  in  the  purchase  to  the  plaintiff,  which  notes  were 
received  by  the  plaintiff  "in  place  of  and  in  payment  of  said 
first-mentioned  notes,  and  which  notes  last  given  are  the 
notes,  and  the  renewal  thereof  set  forth  in  the  complaint." 
The  answer  then  alleged  a  breach  of  this  warranty  and 
damages  as  the  consequence;  it  also  alleged,  by  way  of 
counter-claim,  that  the  plaintiff  was  indebted  to  defendant 
in  a  further  sum  for  services  performed  by  him  for  and  at 
the  request  of  the  plaintiff,  for  which,  with  the  amount  of 
damages  for  the  alleged  breach  of  warranty,  he  demanded 
judgment.  And  for  further  answer  he  denied  the  complaint, 
and  each  and  every  allegation  therein  contained  except  as 
thereinbefore  admitted.  The  plaintiff,  by  reply,  put  in 
issue  the  new  matter  of  the  answer  constituting  the  alleged 
counter-claims.  The  trial  court  directed  judgment  for  the 
amount  of  the  notes  and  of  the  overdraft  mentioned  in  the 
complaint. 

Further  facts  appear  in  the  opinion. 

********** 

Bradley,  J.  The  contest  on  the  trial  mainly  had  relation 
to  the  defendant's  alleged  counter-claim  for  services,  upon 
which  claim  he  gave  evidence  to  the  effect  that  they  were 


Chap.  6]  The  Right  to  Open  and  Close  251 

performed  by  him  pursuant  to  an  agreement  with  the  plain- 
tiff, by  which  the  latter  undertook  to  pay  him  $2,500,  of 
which  $160  had  been  paid.  This  claim,  and  the  evidence  on 
the  part  of  the  defendant  tending  to  support  it,  were  dis- 
puted by  the  evidence  on  the  part  of  the  plaintiff,  and  the 
trial  court  found  the  facts  against  the  defendant.  For  the 
purpose  of  this  review,  the  findings  and  determination  of 
the  court  below  must  be  deemed  conclusive.  Upon  the  trial 
the  question  as  to  which  party  was  entitled  to  the  closing 
argument  was  raised;  the  court  held  that  the  plaintiff  had 
tlie  right  to  it,  and  the  defendant  excepted.  The  rule  that 
the  party  having  the  affirmative  of  the  issue  in  an  action 
shall  have  the  opportunity  to  make  the  opening  and  closing 
presentation  of  his  case  is  deemed  founded  upon  a  substan- 
tial right,  the  denial  of  which  is  error.  {Conselyea  v.  Sivift, 
103  N.  Y.  604.)  In  its  application  to  trials  by  jury  it  has 
ordinarily  more  practical  importance  than  in  those  before 
the  court  without  a  jury  and  before  referees.  If  it  appears 
that  a  party  could  not  have  been  prejudiced  by  the  failure 
of  the  court  to  observe  this  rule,  the  error  would  not  be 
available,  and  in  trials  by  the  court  without  jury  or  before 
referees  that  question  would  be  dependent  upon  the  circum- 
stances of  each  case.  In  the  present  case  the  view  of  the 
court  evidently  was  that  the  affirmative  of  the  entire  issue 
was  not  with  the  defendant,  and  that  is  the  question  pre- 
sented for  consideration.  The  denial  by  the  defendant  in 
his  answer,  except  as  therein  admitted,  of  each  and  every 
allegation  of  the  complaint,  put  in  issue  any  material  allega- 
tion of  the  complaint  not  distinctly  admitted  by  the  answer. 
(Allis  v.  Leonard,  46  N.  Y.  688;  22  Alb.  L.  J.  28;  Calhoun 
V.  Hallen,  25  Hun.  155.)  The  charge  in  the  complaint,  in 
due  form,  of  the  indebtedness  of  the  defendant  to  the  plain- 
tiff" for  the  amount  advanced  to  him  upon  his  check  in  excess 
of  the  balance  of  his  account  with  the  plaintiff,  was  not  ad- 
mitted by  the  answer,  but  was  controverted  by  such  denial. 
It  appears  that  after  the  trial  had  been  moved  and  the  plain- 
tiff, by  its  counsel  had,  by  statement  of  it,  made  the  opening 
of  the  case  to  the  court,  the  defendant  orally  admitted  the 
count  of  the  complaint  alleging  the  overdraft.  *  *  *  The 
question  arises  whether  the  oral  admission  at  the  trial  of 
the  plaintiff's  claim  for  the  amount  of  the  defendant's  over- 
draft, entitled  him  to  the  right  of  closing  the  argument  on 


252  Trial  Practice  [Cliap.  6* 

the  final  submission  of  the  case  to  the  court  for  determina- 
tion. And  that  depends  upon  the  question  whether  the  af- 
firmative of  the  issue,  with  a  view  to  such  a  right,  must  be 
ascertained  from  the  pleadings,  or  may  arise  from  admis- 
sions orally  made  at  the  trial.  The  issues  to  be  tried  can  be 
ascertained  only  by  reference  to  the  pleadings,  and  they 
must  govern  so  far  as  relates  to  the  right  of  the  parties  to 
open  the  case  at  the  beginning  and  conclude  the  argument 
at  the  close  of  the  trial.  When  the  parties  go  to  trial  they 
respectively  assume  the  burden  of  establishing  that  which 
they  have  affirmatively  alleged  as  a  cause  of  action  or  coun- 
ter-claim, if  it  is  controverted  by  allegation  sufficient  to  put 
it  in  issue.  The  admission  of  a  fact  upon  the  trial  is  evi- 
dence merely.  It  may  obviate  the  necessity  of  further  trial 
of  the  issue  to  which  it  relates,  but  does  not  change  it  as 
represented  by  the  pleadings.  That  can  be  done  by  amend- 
ment only.  It  is  true  that  the  admission  made  at  the  trial 
may  reduce  the  controversy  to  matter  as  to  which  the 
affirmative  is  with  the  defendant.  Such  would  be  the  effect 
of  evidence  of  any  character,  undisputed  and  indisputable 
of  the  facts  constituting  the  alleged  cause  of  action.  The 
right  under  consideration  does  not  depend  simply  upon  the 
admission  of  those  facts,  unless  they  are  admitted  or  uncon- 
troverted  by  the  answer;  otherwise  it  is  evidence  only. 
There  is  no  occasion  to  extend  the  rule  so  as  to  give  effect 
for  such  purpose,  to  concessions  at  the  trial.  This  might 
lead  to  the  adoption  of  such  a  course  when  further  dispute 
of  the  facts  upon  which  a  plaintiff  relies  may  appear  hope- 
loss  to  a  defendant,  for  the  purpose  of  obtaining  the  right 
of  closing  the  trial.  There  is  no  apparent  reason  for  apply- 
ing such  rule  to  any  one  more  than  to  any  other  stage  of  the 
trial.  Tlie  defendant  who  may  wish  to  take  the  right  of 
opening  and  concluding  the  trial,  must  frame  his  pleading 
with  that  view,  and  so  as  to  present  no  issue  upon  any  alle- 
gation of  the  complaint  essential  to  the  plaintiff's  alleged 
cause  of  action.  If  the  defendant  fail  to  do  that,  no  matter 
how  little  proof  the  remaining  issue  may  require,  or  how 
easily,  or  in  what  manner  it  may  be  established  by  evidence, 
the  right  of  the  plaintiff  to  open  and  close  the  case  is  not 
denied  to  him.  (Mercer  v.  Whall,  5  Ad.  &  El.  (N.  S.)  447.) 
The  test  is,  whether  without  any  proof,  the  plaintiff,  upon 
the  pleadings,  is  entitled  to  recover  upon  all  the  pauses 


Chap,  6]  The  Right  to  Open  and  Close  253 

of  action  alleged  in  his  comiDlaint.  If  he  is,  and  the  defend- 
ant alleges  any  counter-claim,  controverted  by  the  plain- 
tiff's pleading  or  any  affirmative  matter  of  defense  in  avoid- 
ance of  the  plaintiff's  alleged  cause  of  action,  and  which  is 
the  subject  of  trial,  the  defendant  has  the  right  to  open  and 
close,  otherwise  not.  *  *  *  If  the  defendant,  by  permission 
of  the  court,  had  stricken  out  the  denial  in  his  answer,  or 
amended  it  by  inserting  the  admission  orally  made,  a  differ- 
ent question  would  have  been  presented  at  the  trial  upon  the 
claim  of  the  defendant  to  the  right  to  conclude  it. 

No  other  question  requires  the  expression  of  considera- 
tion. 

The  judgment  should  be  affirmed. 

All  concur  except  Follett,  Ch.  J.,  not  sitting. 

Judgment  Affirmed. 

iThere  is  some  authority  for  the  rule  that  admissions  made  at  the  trial  will 
determine  the  right  to  open  and  close.  See  Abel  v.  Jarrett,  (1897)  100  Ga. 
732,  28  S.  E.  453. 


GARDNER  V.  MEEKER. 

Supreme  Court  of  Illinois.    1897, 
169  Illinois,  40. 

Mr.  Justice  Wilkin  delivered  the  opinion  of  the  court : 
This  was  a  suit  in  assumpsit  upon  a  promissory  note  for 
$1,000,  given  by  John  J.  Girtin  and  William  C.  Girtin  to 
Nash,  Wright  &  Co.,  dated  September  6,  1889,  due  in  ninety 
days,  and  duly  assigned  to  one  Henry  A.  Gardner.  The 
defendant  John  J.  Girtin  was  not  served.  The  defense  made 
by  William  C.  Girtin  was,  that  the  consideration  of  the  note 
was  a  balance  due  upon  certain  transactions  on  the  Board 
of  Trade  of  Chicago,  which  were  in  violation  of  the  statute 
against  option  dealing  in  grain,  and  the  note  was  therefore 
void.  There  was  a  verdict  and  judgment  for  the  de- 
fendant. *  *  * 

After  the  trial  had  begun  the  defendant  withdrew  his  plea 
of  the  general  issue,  and  the  court,  over  the  objection  of  the 


254  Trial  Practice  [Chap.  6 

plaintiff,  permitted  him  to  have  the  opening  and  closing  of 
the  argument.  This,  also,  is  assigned  for  error.  The  rule 
on  the  subject  of  the  opening  and  closing  of  the  argument  is 
this:  ''That  where  the  plaintiff  has  anything  to  prove  in 
order  to  get  a  verdict,  whether  in  an  action  ex  contractu  or 
ex  delicto,  and  whether  to  establish  his  right  of  action  or  to 
fix  the  amount  of  his  damages,  the  right  to  begin  and  reply 
belongs  to  him."  (1  Thompson  on  Trials,  sec.  228;  Mc- 
Reynolds  v.  Burlington  and  Ohio  River  Raihvay  Co.,  106  111. 
152.)  The  withdrawal  of  the  plea  of  the  general  issue 
amounted  to  an  admission  of  the  right  of  the  plaintiff  to  re- 
cover the  amount  of  the  note  sued  on,  unless  the  defense 
alleged  in  the  special  pleas  was  proven  by  a  preponderance 
of  the  evidence.  There  is  no  doubt  that  the  defendant  had 
a  right,  before  the  commencement  of  the  trial,  to  withdraw 
the  general  issue  and  rely  upon  the  special  pleas,  and  if  he 
did  so,  he  would  have  the  right  to  open  and  close.  {Harvey 
V.  Ellithorpe,  26  111.  418 ;  Carpenter  v.  First  Nat.  Bank,  119 
id.  352.)  The  trial  court  had  the  right,  in  the  exercise  of  a 
sound,  reasonable  discretion,  to  permit  the  issues  to  be 
changed,  and  to  allow  the  defendant,  in  consequence  thereof, 
to  assume  the  affirmative  and  to  open  and  close  the  argu- 
ment, as  well  after  the  case  was  on  trial  as  before,  and  we 
think  that  discretion  was  not  abused  in  this  case.  Nor  was 
it  error  to  permit  the  defense  to  file  additional  special  pleas 
in  the  midst  of  the  trial,  no  affidavit  of  surprise  or  applica- 
tion for  continuance  having  been  made. 

********** 

The  judgment  of  the  Appellate  Court  will  be  affirmed. 

Judgment  affirmed.^ 

1  statutory  Modification  of  Bule.  The  practice  is  sometimes  governed  by 
statute.  Thus,  in  Schoonover  v.  Osborne,  (1902)  117  Iowa,  427,  90  N.  W. 
844,  it  was  held  that  under  fode  ^  3701,  the  right  to  open  and  close  the  argu- 
ment is  to  be  determined  by  the  evidence,  and  not  by  the  pleadings. 

Discretionary  or  of  right,  in  some  jurisdictions  the  opening  and  closing 
is  hold  to  be  a  matter  resting  in  the  discretion  of  the  court.  Woodward  v. 
Insurance  Co.,  (1899)  104  Tenu.  49,  56  S.  W.  1T)20;  Smith  v.  Frazier,  (1866) 
r,:?  T'a.  St.  220;  Young  v.  Newark  Fire  Tns.  Co.,  (1890)  .59  Conn.  41,  22  Atl. 
32.       Rut  in  the  great  majority  of  jurisdictions  it  is  deemed  a  matter  of  right. 

In  Michifinn,  where  the  defendant  is  obliged  in  all  cases  to  file  a  general 
issue,  he  may  obtain  the  opening  and  closing  under  Circuit  Court  Rule  24  (c) 
by  expressly  waiving  the  benefit  of  the  general  issue  and  admitting  the  facts 
alleged  in  the  plaintifT's  declaration,  this  being  done  by  a  special  notice  ac- 
companying the  general  issue. 


CHAPTER  VII. 

OPENING  STATEMENT  OF  COUNSEL. 

SCEIPPS  V.  EEILLY. 

Supreme  Court  of  Michigan.     1877. 
35  Michigan,  371. 

Graves,  J. 

Defendant  in  error  recovered  judgment  in  the  superior 
court  of  Detroit  in  an  action  for  libel,  and  plaintiff  in  error 
complains  of  various  proceedings  at  the  trial. 

Defendant  in  error  was  a  lawyer  in  practice  in  Detroit. 
He  was  a  single  man.  In  the  spring  of  1875  he  was  elected 
circuit  judge  of  Wayne  county,  and  in  the  fall  thereafter 
was  appointed  to  fill  a  vacancy  caused  by  the  resignation 
of  Judge  Patchin. 

In  1873  plaintiff  in  error  began  publishing  the  newspaper 
called  the  "Evening  News,"  and  has  continued  the  publica- 
tion since  that  time.  In  1875  the  paper  had  a  large  daily 
circulation  and  the  news  items  of  each  issue  averaged  some 
two  hundred.  The  parties  were  not  personally  acquainted, 
but  the  paper  opposed  the  election  of  defendant  in  error 
and  supported  another  gentleman,  and  during  the  canvass 
some  intemperate  articles  were  published.  Some  time  in 
the  fall  after  the  election  one  Bobbins  filed  a  bill  in  the 
superior  court  to  obtain  a  divorce  from  his  wife,  and  among 
other  charges  in  the  bill  against  her,  alleged  that  she  had 
been  guilty  of  adultery  with  defendant  in  error. 

Almost  immediately  after  this  bill  was  placed  on  file,  a 
reporter  and  gatherer  of  local  news  for  the  paper  got  ac- 
cess to  the  bill,  and  with  the  help  of  the  city  editor  prepared 
an  article  covering  this  charge  in  Eobbins'  bill,  and  caused 
it  to  be  published  in  the  paper.  This  occurred  on  the  7th 
of  December.  This  article  is  the  libel  complained  of.  The 
action  was  commenced  the  next  day.  ***** 

The  first  in  the  order  of  proceeding  at  the  trial  seems 
naturally  to  call  for  attention  first. 

255 


256  Teial  Peactice  [Chap.  7 

It  relates  to  the  course  the  counsel  for  defendant  in  error 
was  permitted  to  pursue,  against  repeated  objections,  in 
opening  the  case  to  the  court  and  jury. 

He  declared  it  to  be  his  purpose,  as  part  of  his  open- 
ing, to  read  at  length  before  the  jury  a  series  of  articles 
published  in  the  newspaper  during  the  course  of  several 
months  and  commencing  in  the  spring  of  1875  and  running 
until  some  time  after  the  appearance  of  the  publication  in 
suit. 

And  the  first  group  suggested  consisted  of  articles  from 
the  19th  of  March  to  the  6th  of  December,  and  none  of  which 
referred  to  defendant  in  error.  The  reading  of  them  was 
objected  to  on  the  ground  that  neither  of  them  would  be 
relevant  or  competent  if  regularly  offered  as  evidence  under 
the  issue.  Counsel  for  defendant  in  error  then  stated  that 
he  proposed  to  read  such  articles  as  in  good  faith  he  should 
offer  in  evidence,  and  he  would  read  them  because  he  could 
not  remember  their  contents.  The  court  thereupon  ruled 
that  he  might  read  in  his  opening  such  articles  as  he  claimed 
to  be  libelous,  and  which  had  been  afterwards  retracted. 

About  twenty  articles,  not  relating  to  defendant  in  error, 
and  running  through  the  period  before  indicated,  were  then 
read  to  the  jury  as  part  of  the  opening.  An  exception  was 
taken  to  each.  They  were  calculated  from  their  character 
to  influence  the  minds  of  the  jurors  against  plaintiff  in  er- 
ror. The  counsel  for  defendant  in  error  then  offered  to 
road  at  length,  as  part  of  his  opening,  a  series  of  articles 
published  the  spring  before  the  publication  charged  as 
libelous,  concerning  the  defendant  in  error  when  running 
for  the  office  of  circuit  judge. 

This  was  objected  to  on  the  ground  that  the  articles  did 
not  tend  to  show  actual  malice,  and  would  not  be  competent 
if  offered  as  evidence.  Counsel  for  defendant  in  error  then 
ex))]ainod  that  he  did  not  propose  to  then  read  them  as 
evidence  to  show  malice,  but  to  read  such  as  he  expected  to 
offer  and  prove  afterwards,  and  such  as  when  put  in  evi- 
dence would  tend  to  show  malice  towards  defendant  in  er- 
ror. The  court  overruled  the  objection  and  allowed  coun- 
sel to  read  as  he  proposed.  He  then  read,  as  part  of  his 
oy)oning  to  the  jury,  five  articles  he  claimed  tended  to  show 
aclufil  malice  by  plaintiff  in  error  against  defendant  in  er- 


Chap.  7]         Opening  Statement  op  Counsel  257 

ror.    They  bore  date  March  12th,  March  22nd,  March  29th, 
March  31st,  and  April  3rd,  1875. 

The  counsel  for  defendant  in  error  then  proposed  to  read 
at  length,  as  part  of  his  opening  and  not  as  evidence,  an- 
other series  of  articles  published  after  the  libel. 

This  was  objected  to  on  the  ground  that  the  articles  would 
not  be  competent  or  admissible  if  offered  as  evidence.  They 
all  referred  to  the  alleged  libelous  article  and  the  legal  pro- 
ceedings growing  out  of  it. 

The  objection  was  overruled.  *****  The  opening  state- 
ment having  been  allowed  to  embrace  the  reading  in  full 
of  all  these  publications,  and  having  been  brought  to  a 
close,  the  counsel  for  defendant  in  error  proceeded  to  offer 
evidence.  None  had  yet  been  received,  and  although  the 
plaintiff  in  error  had  not  been  able  to  prevent  the  reading 
of  the  publications  to  the  jury  he  was  still  not  able  to  meet 
them  as  evidence,  for  any  purpose  or  in  any  way. 

They  were  lodged  in  the  jurors'  minds  as  matters  in  the 
cause  they  were  entitled  to  receive,  but  not  through  the 
channel  the  law  has  made  for  the  conveyance  of  evidence, 
or  at  the  stage  of  proceeding  proper  for  submitting  evi- 
dence. They  were  matters  which  could  not  fail,  when  so 
presented,  to  prepossess  the  jury  unfavorably  against  the 
plaintiff  in  error.  Confining  attention  now  to  this  branch 
of  the  case,  it  appears  from  the  record,  that  of  the  series 
of  publications  not  relating  to  defendant  in  error,  and  per- 
mitted to  be  read  at  length  in  the  opening  statement,  on 
the  pledge  that  they  would  be  afterwards  offered  in  good 
faith  as  evidence,  five  were  not  even  offered  as  evi- 
dence at  all  at  any  stage  of  the  trial,  and  as  to  one  other  the 
record  is  contradictory;  some  ten  or  a  dozen  or  more,  the 
record  being  ambiguous  as  to  a  few,  were  not  offered  except 
upon  the  rebutting  case,  and  were  then  rejected  by  the 
court ;  and  the  residue  of  this  list,  being  five  or  six,  were  re- 
served until  the  plaintiff  in  error  had  rested  his  defense, 
and  were  then  offered  and  admitted  as  rebutting  evidence. 

Of  the  series  published  in  the  spring  of  1875,  concern- 
ing the  candidacy  of  defendant  in  error  as  circuit  judge, 
and  which  were  read  at  length  in  the  opening,  on  the  avowal 
of  counsel's  belief  that  they  intended  to  show  actual  notice 
by  plaintiff  in  error  against  defendant  in  error,  and  would 
be  offered  in  evidence  for  that  purpose,  not  one  was  offered 
T.  p.— 17 


258  Trial  Pbactice  [Chap.  7 

during  the  making  out  the  case  in  chief.  They  were  held 
back  until  the  plaintiff  in  error  had  rested,  and  were  then 
tendered  as  rebutting  evidence.  All  were  excluded.  There 
were  five  in  this  group. 

Of  the  set  published  after  the  appearance  of  the  alleged 
libel,  five  were  given  in  evidence  b}^  the  defendant  in  error 
to  show  actual  malice,  and  they  were  so  given,  but  against 
objection,  as  part  of  his  case  in  chief.  ***** 

When  the  judge  came  to  charge  the  jury,  he  referred  to 
the  course  which  he  had  permitted  in  respect  to  the  open- 
ing statement,  and  observed,  "Mr.  Griffin  in  his  opening 
read  several  articles  which  at  the  trial  were  finally  excluded. 
These  should  also  be  withdrawn  from  your  consideration 
and  laid  out  for  view  in  your  deliberations  upon  the  case." 

No  further  reference  was  made  to  the  subject  of  the  open- 
ing statement,  and  no  caution  whatever  was  given  concern- 
ing the  articles  which  had  been  read  at  length  by  permission 
of  the  court  against  objection,  but  which  had  not  even  been 
offered  in  evidence  at  all. 

The  question  is,  whether  the  practice  which  was  here  al- 
lowed in  the  opening  address  was  correct,  and  if  not, 
whether  the  advice  quoted  from  the  charge  cured  the  error, 
and  in  case  it  did  not,  then  whether  it  is  competent  for  this 
court  to  revise  the  proceedings. 

The  trial  judge  must  always  have  a  very  large  discre- 
tion in  controlling  and  managing  the  routine  proceedings 
at  the  trial,  and  it  is  not  necessary  to  specify  the  matter  to 
which  such  discretion  extends.  It  applies  beyond  doubt  to 
the  addresses  of  counsel  as  well  as  to  other  incidents.  But 
it  must  be  a  reasonable,  a  legal  discretion,  and  whether  it  be 
so  or  not  must  depend  upon  tiie  nature  of  the  proceeding  on 
which  it  is  exercised,  the  way  it  is  exercised  and  the  special 
circumstances  under  which  it  is  exercised.  It  can  never  be 
intended  that  a  trial  judge  has  purposely  gone  astray  in 
dealing  with  matters  within  the  category  of  discretionary 
proceedings,  and  unless  it  turns  out  that  he  has  not  merely 
misstepped,  l)ut  has  departed  widely  and  injuriously,  an 
appellate  court  will  not  re-examine.  It  will  not  do  it  when 
there  is  no  better  reason  than  its  own  opinion  that  the 
course  actually  taken  was  not  as  wise  or  sensible  or  orderly 
as  another  would  have  been.  For  example,  if  all  the  arti- 
cles allowed  to  be  read  m  the  opening  statement  had  been 


Cliap.  7]         Opening  Statement  of  Counsel  259 

afterwards  given  in  evidence,  their  reading  in  the  opening, 
however  contrary  to  settled  practice,  might  not  have  of- 
fered anything  proper  for  consideration  here.  Questions 
concerning  their  admissibility  wonld  fall  under  another 
head.  But  where  it  is  manifest  the  trial  judge  has  fallen 
into  a  serious  mistake, — one  likely  to  have  hurt  a  party, — 
an  error  mentioned  in  the  books  as  an  abuse  of  discretion, — 
this  court  is  bound  to  take  cognizance,  or  disregard  its  con- 
stitutional duty  of  supervision. 

It  is  a  chief  duty  of  the  trial  judge  to  secure  fair  play 
to  litigants,  and  so  far  as  practicable  to  shape  the  order  and 
course  of  proceedings  in  such  a  way  that  neither  party  will 
be  put  to  a  disadvantage  not  due  to  his  case  or  its  mode  of 
management  by  his  counsel.  The  rules  of  the  court,  and 
what  is  called  the  course  of  the  court,  have  their  origin  in 
the  purpose  to  secure  fairness  in  legal  controversies,  and 
the  order  of  business  and  the  regulated  succession  of  steps 
at  trials  have  the  same  object. 

The  rule  (62)  ordained  by  this  court  for  the  circuit  courts 
in  regard  to  an  opening  statement,  is  especially  meant  to 
guard  against  surprise  and  deception  and  to  promote  fair- 
ness. And  when  it  declares  that ' '  it  shall  be  the  duty  of  the 
plaintiff's  counsel,  before  offering  evidence  to  support  the 
issue  on  his  part,  to  make  a  full  and  fair  statement  of  his 
case  and  of  the  facts  which  he  expects  to  prove,"  it  indicates 
very  distinctly  the  extent  of  both  right  and  duty.  It  draws 
a  line  between  "evidence"  and  "facts,"  and  contemplates  a 
"fair"  statement  of  the  "facts"  expected  to  be  "proved" 
before  putting  in  the  testimony  or  "evidence"  by  which 
these  "facts"  are  expected  to  be  "proved."  Neither  the 
nature  of  the  proceeding,  nor  that  fairness  it  is  intended  to 
promote,  nor  the  plain  meaning  of  the  rule,  gives  any  sanc- 
tion to  the  claim  that  in  this  opening  statement  the  plain- 
tiff's counsel  may  read  at  length  to  the  jury  any  documen- 
tary matter  he  may  assert  his  intention  of  subsequently  of- 
fering as  evidence.  But  the  position  taken  in  this  cause  in- 
volves the  assertion  of  the  right  to  fill  up  the  opening  state- 
ment with  any  depositions  on  file  and  the  whole  of  oral 
statements  of  expected  witnesses,  without  regard  to  objec- 
tions to  admissibility  as  evidence.  Surely  it  cannot  require 
much  tliought  to  decide  against  the  reasonableness  and  fair- 
ness of  such  a  practice. 


260  Teial  Pkactice  [Chap.  7 

The  text  books  in  this  country  which  deal  with  the  subject 
are  distinctly  agreed  concerning  the  end  and  scope  of  this 
opening  address.  They  all  represent  it  as  a  proceeding 
prefatory  to  putting  in  evidence,  and  as  one  practically 
necessary  to  make  an  advance  exhibit  of  the  legal  nature  of 
the  controversy  and  its  salient  peculiarities,  and  enable  the 
judge,  jury  and  opposing  counsel  to  apprehend  the  necessi- 
ties of  the  plaintiff's  case  and  correctly  understand  the  drift 
and  bearing  of  each  step  and  each  offer  of  proof  as  it  shall 
occur  subsequently.  And  considering  that  its  office  is  to 
afford  preliminary  explanation,  that  it  is  to  precede  proofs 
and  precede  controversy  before  the  jury,  and  is  not  to  em- 
body or  convey  proof  or  prepossess  the  jury,  they  unite  in 
substantially  denying  the  right  to  make  use  of  it  to  get 
before  the  jury  a  detail  of  the  testimony  expected  to  be  of- 
fered, and  especially  any  not  positively  entitled  to  be  intro- 
duced, and  deny  the  right  to  use  it  as  a  cover  for  any  topics 
not  fairly  pertinent.  A  brief  summary  or  outline  of  the 
substance  of  the  evidence  intended  to  be  offered,  with  req- 
uisite clear  and  concise  explanations,  are  considered  prop- 
er. But  a  relation  of  expected  oral  testimony  at  length,  or 
a  reading  of  expected  docuirtentary  proofs  at  large,  or  any 
otbor  course  fitted  to  mislead  the  triers,  should  not  be  tol- 
erated. Of  course  there  mav  be  cases  and  instances  where 
a  statement  of  the  evidence  itself,  or  a  reading  of  a  paper, 
may  be  convenient  and  harmless.  Such,  however,  must  be 
exceptional,  and  not  within  the  spirit  of  the  general  require- 
ment. *  *  *  * 

The  courts  have  usually  been  very  firm  in  confining  coun- 
sel within  proper  bounds  and  in  guarding  jurors  against 
unfair  and  irregular  acts  and  endeavors,  and  parties  have 
been  deprived  of  their  verdicts  upon  evidence  merely  indi- 
cating the  operation  of  influences  about  the  outskirts  of  the 
trial.  Tt  has  been  many  times  ruled  that  counsel  in  arguing 
may  not  seek  to  influence  the  jurors  by  reference  to  matters 
in  the  nature  of  evidence  not  in  proof  before  them,  and  that 
tlie  trinl  judge  should  promptly  repress  the  attempt  as 
sometliing  reprehensible.  *  *  *  * 

In  tlie  case  of  The  State  v.  Hascall,  6  N.  H.  352,  the  de- 
fcTidant  was  convicted  of  prejury,  whereupon  it  was  shown 
tliat  i)apcrs  calculated  to  make  an  unfavorable  impression 


Chap.  7]         Opening  Statement  of  Counsel  261 

on  the  jury  were  exhibited  by  the  prosecutor  at  several 
public  places  where  jurors  boarded,  and  were  read  in  the 
hearing  of  jurors  during  term  and  before  the  trial,  and 
the  court  decided  that  for  this  cause  the  verdict  should  be 
set  aside. 

In  Spenceley  v.  De  Willot,  7  East  R.  108,  which  was  an 
action  for  usury,  a  new  trial  was  granted  because  the  plain- 
tiff had  published  a  statement  of  the  case  which  was  dis- 
tributed about  the  court  and  hall  before  and  at  the  time  of 
trial;  and  in  Coster  v.  Merest,  3  Brod.  &  Bing.  272,  a  new 
trial  was  allowed  on  an  affidavit  stating  that  handbills  re- 
flecting on  the  plaintiff's  character  had  been  distributed  in 
court  at  the  time  of  the  trial  and  had  been  seen  by  the  jury, 
and  the  court  refused  to  hear  affidavits,  made  by  all  the 
jurors,  stating  that  no  such  placard  had  been  shown  to  them. 
There  is  no  occasiem  for  dwelling  on  this  part  of  the  case 
after  what  has  been  said.     The  practice  pursued  was  wrong, 
und  the  error  was  not  cured  or  materially  alleviated  by  the 
charge.     The  jury  were  not  even  told  to  disregard  such  of 
the  articles  as  were  read  in  the  statement  of  the  case  and  not 
afterwards  offered  in  evidence,  and  the  special  direction  to 
refuse  attention  to  those  which  had  been  offered  and  rejec- 
ted was  calculated  to  imply  in  the  jurors'  minds  that  they 
were  entitled  to  regard  all  others.    Tlie  omission  to  tell  the 
jury  to  disregard  the  articles  not  offered  was  no  doubt  an 
inadvertence  of  the  court.     The  effect,  however,  was  the 
same  as  if  it  had  been  designed.     But  if  the  charge  had  been 
to  disregard  all  unadmitted  articles  it  would  not  have  cured 
the  error.     Because  it  is  quite  impossible  to  conclude  that 
the  jurors  had  not  been  influenced  too  far  by  the  erroneous 
rulings  and  proceedings,  to  be  brought  into  the  same  impar- 
tial attitude  by  the  court's  admonition,  which  they  would 
have  held  if  tlie  counsel  for  defendant  in  error  had  been 
properly  confined  in  his  opening  statement.     The  course  of 
fair  and  settled  piactice  was  violated  to  the  prejudice  of 
plaintiff  in  error,  and  it  is  not  a  satisfactory  answer  to  say 
that  the  court  went  as  far  as  practicable  afterwards  to  cure 
the  mischief,  so  long  as  an  inference  remains  that  the  reme- 
dy applied  by  the  court  was  not  adequate.     And  there  is  no 
doubt  of  the  right  of  this  court  to  revise  in  such  a  case  as 
this.     If  the  trial  court  may  pursue  any  course  it  pleases 
in  relation  to  the  opening  statement,  if  it  raav  act  inde- 


262  Trial  Practice  [Chap.  7 

pendently  of  all  control,  then  the  idea  of  a  rule  to  be  pre- 
scribed by  this  court  under  the  constitution  and  legislative 
enactment  for  its  guidance  and  government,  is  preposterous 
and  absurd.  But  the  point  is  too  plain  for  argument.  As 
already  suggested,  this  court  will  not  revise  such  matters 
unless  there  is  plain  evidence  of  action  amounting  to  what 
is  called  an  abuse  of  discretion  and  calculated  to  injurious- 
ly affect  the  legal  rights  of  a  party,  and  where  such  is  the 
case,  whether  the  result  of  accident,  or  inadvertence,  or  mis- 
conception, it  will  take  cognizance.  The  error  in  this  case 
was  not  cured,  and  is  one  subject  to  review,  and  is  suffi- 
cient to  require  a  reversal. 

The  judgment  must  be  reversed,  with  costs,  and  a  new 
trial  ordered. 


FOSDICK  V.  VAN  ARSDALE. 

Supreme  Court  of  Michigan.     1889. 
74  Michigan,  302. 

Morse,  j.  *  *  *  * 

The  record  shows  that,  after  the  primary  case  of  the 
plaintiff  was  closed, — 

"V.  H.  Lockwood  proceeded  to  state  the  defendants'  case 
to  the  jury,  and  during  the  opening  proceeded  to  state  the 
law  governing  the  defendants'  case,  and  upon  which  the  de- 
fense was  based ;  whereupon  the  counsel  for  the  plaintiff  in- 
terposed an  objection,  and  the  said  court  sustained  the  ob- 
jection, stating  that  the  law  would  come  from  the  court  in 
due  time." 

This  is  made  the  first  assignment  of  error  in  defendants' 
brief. 

We  are  not  able,  from  this  meager  statement  in  the  rec- 
ord, to  know  whether  error  was  committed  or  not  by  this 
action  of  the  circuit  judge.  But  counsel  have  the  right  in 
stating  their  case  to  the  jury  at  the  opening  to  briefly  set 
forth  what  points  of  the  law  they  rely  upon,  and  the  na- 
ture of  the  testimony  they  propose  to  introduce  to  support 


Chap.  7]         Opening  Statement  of  Counsel  263 

such  points.  It  is  true  the  law  is  to  be  given  by  the  court ; 
but,  as  it  is  not  given  in  most  cases  until  the  testimony 
is  ended,  and  the  counsel  have  summed  the  same  up  in  sup- 
port of  their  case  before  the  jury,  the  counsel  have  the 
right,  both  in  opening  the  case  to  the  jury,  before  the  testi- 
mony to  support  their  case  is  offered,  and  when  closing  the 
argument,  after  the  testimony  is  in,  to  state  to  the  jury  that 
they  claim  the  law  to  be  thus  and  so,  and  that  they  shall 
request  the  court  to  so  instruct  them,  and  that  they  will  ad- 
duce such  and  such  testimony  to  support  their  claim  under 
the  law  in  the  first  instance,  or  at  the  close  to  state  that  the 
evidence  in  the  case,  under  the  law  as  they  shall  claim  it  to 
be,  establishes  their  right  to  a  verdict  at  the  hands  of  the 
jury.  The  counsel  have  no  right  to  read  law  to  the  jury, 
or  to  usurp  the  province  of  the  court  in  any  way  in  this  re- 
spect, but  they  have  the  undoubted  right  to  state  so  much  of 
the  law,  as  they  claim  it  to  be,  as  may  enable  them  to  lay 
before  the  jury  an  intelligent  idea  of  the  force,  effect,  and 
bearing  of  the  testimony  upon  their  case,  either  before  or 
after  said  testimony  is  in  the  case. 


SAN  MIGUEL  CONSOLIDATED  GOLD  MINING  COM- 
PANY V.  BONNER. 

Supreme  Court  of  Colorado.    1905. 

33  Colorado,  207. 

Mk.  Justice  Campbell  delivered  the  opinion  of  the  court. 

The  dispute  is  over  a  strip  of  mining  ground  claimed  by 
plaintiffs  and  appellants  as  a  parcel  of  the  Happy  Home 
placer,  and  by  defendant  (appellee)  as  a  part  of  the  Loop- 
ton  lode  mining  location.  The  owner  of  the  lode  claim  first 
applied  for  a  patent,  and  appellants,  as  owners  of  the  plac- 
er, filed  in  the  United  States  land  office  their  protest  or  ad- 
verse claim  against  the  same,  and  seasonably  brought  this 
action  in  its  support.  Trial  was  to  the  court  and  jury,  and  a 
verdict  was  returned  for  defendant  on  which  judgment  was 


264  Tkial  Practice  [Chap.  7 

rendered,  and  plaintiffs  are  here  with  this  appeal,  urging  as 
grounds  for  reversal  alleged  erroneous  rulings  below,  to 
the  consideration  of  which  we  now  proceed. 

1.  In  his  opening  statement  to  the  jury  counsel  for 
plaintiffs,  after  stating  to  the  jury  that  they  were  to  take 
the  law  from  the  court  in  instructions  that  would  be  given 
at  the  close  of  the  trial  and  before  argument,  proceeded  to 
state  the  law  applicable  to  the  case,  as  he  understood  it, 
for  the  alleged  purpose  of  giving  to  the  jury  his  theory  of 
the  case,  so  that  they  might  be  the  better  enabled  to  appre 
ciate  and  apply  the  facts  as  they  were  elicited  during  the 
trial.  To  this  course  defendant  objected,  in  which  he  was 
sustained  by  the  court.  In  support  of  plaintiffs'  exception 
to  the  ruling  they  insist  that  a  plaintiffs'  counsel  has  the 
absolute  right  to  state  to  a  jury  in  his  opening  address  not 
only  the  case  as  made  by  the  pleadings,  and  the  evidence 
by  which  he  proposes  to  sustain  it,  but  that  he  may  also 
state  so  much  of  the  law  as,  in  his  judgment,  is  necessary 
to  enable  him  to  convey  to  the  jury  an  intelligent  idea  of 
the  force,  effect  and  bearing  of  the  testimony  in  the  case. 
To  this  are  cited: — Fostick  v.  Van  Arsdale,  74  Mich.  302; 
Prenfis  v.  Bates,  93  Mich.  234;  McDonald  v.  People,  126 
Ills.  150;  2  Enc.  PI.  &  Pr.  706. 

To  the  contrary  appellee  cites: — Giffen  v.  Lewiston 
{Idaho),  55  Pac.  545,  549;  Hill  v.  Colorado  National  Bank, 
2  Colo.  App.  324-9;  Felt  v.  Cleghorn,  2  Colo.  App.  4:-%;  Pick' 
ett  V.  Handy,  5  Colo.  App.  295. 

The  respective  contentions  are  substantially  sustained  by 
some  of  these  authorities.  Whatever  the  practice  may  be 
in  other  jurisdictions,  our  code,  section  187,  in  prescribing 
the  order  of  trials  by  jury,  provides  that  after  the  jury  is 
sworn,  unless  for  good  cause  shown  the  court  otherwise 
directs,  the  proceeding  shall  be : 

''First. — The  party  on  whom  rests  the  burden  of  the  is- 
sues may  briefly  state  his  case,  and  the  evidence  by  which 
he  expects  to  sustain  it. 

''Second. — The  adverse  party  may  then  briefly  state  his 
defense,  and  the  evidence  he  expects  to  offer  in  support  of 
it." 

These  clauses  confer  upon  respective  counsel  no  authori- 
ty in  opening  to  state  the  law  of  the  case  to  the  jury.  Sub- 
divisions G  and  7  of  the  same  section  require  the  court  to 


Chap.  7]         Opening  Statement  of  Counsel  265 

give  instructions  upon  the  law  after  the  evidence  is  closed 
and  before  argument  is  begun,  which  may,  in  all  cases,  be 
read  to  the  jury  and  commented  on  by  the  attorneys  in 
argument,  and,  if  requested  by  either  party  or  the  jury, 
may  be  taken  by  the  latter  in  their  retirement.  Ample  pro- 
vision is  thus  made  for  counsel,  at  a  certain  stage  in  the 
progress  of  the  trial,  to  read  to  the  jury,  and  comment  up- 
on, the  law  of  the  case  which  the  jury  must  take  from  the 
court.  The  mere  fact  that  the  court  does  not  allow  coun- 
sel in  his  opening  to  exercise  the  statutory  right  here  given, 
and  before  he  could  know  what  the  court  would  declare 
the  law  to  be,  instead  of  in  his  argument  at  the  close  of  the 
case,  where  the  code  says  it  shall  be  enjoyed,  is  not  some- 
thing of  which  a  party  may  complain.  In  other  words, 
since  the  code  has  declared  what  a  party  may  state  to  the 
jury  in  his  opening,  he  may  not,  as  of  right,  make  any 
statements  other  than  those  specially  permitted. 

Furthermore,  the  right  of  counsel  here  asserted,  if  it  ex 
ist  at  all,  does  not,  as  already  said,  spring  from  statute. 
Practice  and  procedure,  outside  of  statutory  provisions, 
are  so  largely  within  the  sound  discretion  of  trial  courts, 
and  the  conduct  of  trials  and  the  latitude  to  be  allowed 
counsel  are  so  largely  within  their  control,  that,  except  for 
illegal  or  gross  abuse  of  discretion,  their  action  with  re- 
spect thereto  should  be  upheld. — McClure  v.  Sanford,  3 
Colorado,  514,  518.  From  the  brief  reference  found  in  the 
abstract,  we  do  not  believe  that  any  prejudice  could  have 
resulted  to  plaintiffs  by  reason  of  the  refusal  of  the  court 
to  permit  their  attorney  to  state  to  the  jury  the  law  of  the 
case  in  the  opening  remarks. 

Perceiving  no  material  prejudicial  error  in  the  record, 
the  judgment  is  affirmed.^ 

iTo  the  same  effect  see  Maynard  v.  State,  (1908)  81  Nebr.  301,  116  N   W 
53.  ,  .      . 


Trial  Peactice  [Chap.  7 

PIETSCH  V.  PIETSCH. 

Supreme  Court  of  Illinois.     1910. 
245  Illinois,  454. 

Mr.  Justice  Cartwright  delivered  the  opinion    of   the 
eonrt : 

This  is  a  suit  in  forcible  detainer  for  the  possession  of 
a  lot  in  Chicago,  begun  by  Charles  F.  Pietsch,  the  appellee, 
by  filing  his  complaint  in  the  municipal  court  of  Chicago 
against  Otto  E.  Pietsch  and  Helen  Pietsch,  appellants.  Af- 
ter a  jury  had  been  empaneled  and  sworn  the  attorney  for 
plaintiff  made  an  opening  statement  of  the  case  to  the  jury, 
to  the  effect  that  the  defendants,  who  are  husband  and  wife, 
had  made  a  mortgage  or  trust  deed  on  the  lot.  which  was 
foreclosed;  that  a  sale  was  made  under  the  decree,  from 
which  there  was  no  redemption;  that  a  deed  was  made,  in 
pursuance  of  the  sale,  to  Charlotte  L.  Clark;  that  the  prop- 
$4,000  and  a  deed  was  made  to  him;  that  the  defendants 
were  in  possession  of  the  premises  and  refused  to  surrender 
possession  after  demand  in  writing;  that  the  testimony 
might  show  there  was  some  talk  concerning  an  agreement 
that  if  the  defendants  would  pav  to  the  plaintiff  the  amount 
of  monev  that  was  represented  bv  his  purchase  of  the  prop- 
erty, with  interest  and  costs,  within  a  reasonable  time,  they 
miirht  have  the  property  and  he  would  deed  it  to  them ;  that 
if  it  should  appear  there  was  an  agreement  the  plaintiff 
was  still  willing  to  perform  it.  but  that  he  was  claiming  tho 
possession  of  the  property  in  the  suit.  An  attorney  for  the 
defendants  then  stated  to  the  jury,  in  substance,  that  the 
defendant  PTelen  Pietsch,  beincr  the  owner  of  the  premises 
occupied  by  the  defendants  as  their  home,  made  a  mortgage 
on  the  same,  which  was  foreclosed  ;  that  about  the  time  when 
the  redemption  Avould  expire  she  went  to  the  plaintiff,  her 
brother-in-law,  and  wanted  him  to  loan  her  the  amount  of 
the  mortgage  and  permit  her  to  remain  there;  that  he  let 
her  have  the  money  as  a  loan  but  said  he' would  take  the 
deed  in  his  own  name  as  security;  that  he  put  up  something 
over  Jf;4,000;  that  the  matter  ran  along  and  she  paid  him 
back  $1,000  at  one  time,  $150  at  another  and  afterward  $200 
more;  that  it  ran  along  for  three  or  four  years  afterward, 


Chap.  7]         Opening  Statement  of  Counsel  267 

and  she  had  another  piece  of  property  upon  which  there 
was  a  mortgage  of  $8,800  and  he  said  he  would  loan  her 
enough  money  to  take  that  in.  The  attorney  for  the  plain- 
tiff objected  to  the  statement  relating  to  other  property, 
and  the  attorney  for  the  defendants  said  that  he  wanted 
to  state  to  the  jury  that  the  plaintiff  got  his  money  back  by 
means  of  a  mortgage  upon  the  other  piece  of  property  and 
this  one,  but  the  court  sustained  the  objection  and  an  ex- 
ception was  taken  to  the  ruling.  Continuing,  the  attorney 
stated  that  the  amount  was  $4,283.98  upon  which  pa\Tnents 
had  been  made,  and  that  it  was  agreed  that  Mrs.  Pietsch 
should  remain  in  possession  of  the  premises  and  was  en- 
titled to  remain  there.  The  court  then  said,  ''I  assume  you 
have  stated  all  of  your  defense,"  and  the  attorney  replied, 
"Yes,  sir,"  whereupon  the  court  instructed  the  jury  to  re- 
turn a  verdict  finding  the  defendants  guilty  of  unlawfully 
withholding  possession  of  the  premises  and  that  the  right 
of  possession  was  in  the  plaintiff.  The  jury  returned  a 
verdict  accordingly,  and  the  court,  after  overruling  a  mo- 
tion for  a  new  trial,  entered  judgment  on  the  verdict.  The 
Appellate  Court  for  the  First  District  affirmed  the  judg- 
ment and  granted  a  certificate  of  importance  and  an  appeal 
to  this  court. 

When  the  jury  had  been  sworn  to  try  the  issues  and  ren- 
der a  verdict  according  to  the  evidence  it  was  the  privilege 
of  the  attorney  for  each  party,  if  he  saw  fit  to  do  so,  to 
make  an  opening  statement  of  what  he  expected  to  prove. 
Such  a  statement  is  not  intended  to  take  the  place  of  a  dec- 
laration, complaint  or  other  pleading,  either  as  a  statement 
of  a  legal  cause  of  action  or  a  legal  defense,  but  is  intended 
to  advise  the  jury  concerning  the  questions  of  fact  involved, 
so  as  to  prepare  their  minds  for  the  evidence  to  be  heard. 
How  full  it  shall  be  made,  within  reasonable  limits,  is  left 
to  the  discretion  of  the  attorney,  but  the  only  purpose  is  to 
give  the  jury  an  idea  of  the  nature  of  the  action  and  de- 
fense. To  relate  the  testimony  at  length  will  not  be  tol- 
erated. (1  Thompson  on  Trials,  267.)  A  party  is  entitled 
to  introduce  evidence  and  prove  a  cause  of  action  or  to  de- 
fend against  evidence  tending  to  sustain  a  cause  of  action 
if  no  statement  at  all  is  made,  and  is  not  confined  in  the  in- 
troduction of  evidence  to  the  statement  made  in  the  opening, 
if  one  is  made,    The  opening  statement  may  be  wrong  as  to 


268  Tkial  Practice  [Chap.  7 

some  facts,  and  there  is  no  requirement  that  it  shall  give 
all  the  facts  of  the  case,  which  may  turn  out  to  be  different 
from  the  statement.  The  argument  that  a  court  may  direct 
a  verdict,  not  upon  the  evidence  or  the  want  of  evidence 
but  upon  the  statement  of  an  attorney,  rests  mainly  upon 
the  power  of  an  attorney  to  make  admissions  binding  upon 
his  client  and  to  waive  his  rights.  There  is  no  dispute 
about  the  authority  of  an  attorney  to  admit  facts  on  the 
trial  and  waive  the  necessity  of  introducing  evidence  as  to 
such  facts,  but  the  authorities  cited  relate  to  such  admis- 
sions in  the  trial  of  the  case.  That  the  opening  statement 
to  the  jury  cannot  be  treated  as  an  admission  of  facts  bind- 
ing upon  the  client  was  decided  in  Lush  v.  Throop,  189  111. 
127,  where  the  refusal  of  an  instruction  that  any  statement 
made  by  the  attorney  for  the  plaintiffs  in  his  opening  state- 
ment, about  what  the  evidence  would  show,  was  as  binding 
upon  the  plaintiffs  as  if  the  plaintiffs  themselves  had  made 
such  statement,  and  as  such  should  be  considered  by  tht 
jury  in  making  their  verdict,  was  endorsed  by  this  court. 
If  the  jury  could  not  treat  statements  of  an  attorney,  in  his 
opening  statement,  as  to  what  the  evidence  would  show  as 
admissions  of  fact  binding  on  the  client  and  consider  the 
same  in  making  up  their  verdict,  the  same  rule  must  neces- 
sarily be  applied  to  the  court,  and  it  follows  that  there  was 
no  admission  here  of  the  cause  of  action  or  that  there  was 
no  defense  to  it.  Even  if  it  could  be  said  that  the  attorney 
admitted  that  the  legal  title  to  the  lot  was  in  the  plaintiff 
and  the  title  could  not  be  tried  in  forcible  detainer,  there 
was  no  attempt  to  try  the  question  of  title.  The  title  was 
not  involved  and  could  not  be  tried  or  determined,  but  it  did 
not  necessarily  follow  that  the  plaintiff  was  entitled  to  the 
possession  of  the  property.  The  law  in  England  is,  that  a 
court  cannot  take  such  action  as  was  taken  in  this  case  up- 
on an  opening  statement.  In  Fletcher  v.  London  and 
Northivestern  Bmlivay  Co.,  G5  Ij.  T.  Eep.  605,  the  judge  non- 
suit od  flic  plaintiff  on  the  ground  that  the  opening  state 
ment  did  not  show  any  cause  of  action,  and  it  was  held  that 
the  ludgo  at  the  trial  had  no  right  to  non-suit  a  plaintiff  up- 
on his  counsel's  opening  statement  without  the  consent  of 
his  counsel.  It  was  pointed  out  that  a  suitor  might  lose 
his  case  because  his  counsel  had  omitted  or  mis-stated  some- 
thing in  the  opening,  and  the  course  adopted  in  that  case 


Chap.  7]         Opening  Statement  of  Counsel  269 

was  condemned  as  most  dangerous  to  the  rights  of  litigants. 
The  law  is  the  same  in  Wisconsin.  {Fisher  v.  Fisher,  5 
Wis.  472;  Hadley  v.  Western  Transit  Co.,  76  id.  344.)  The 
same  argument  was  made  to  the  Wisconsin  court  that  is 
made  here, — that  it  would  be  convenient  and  conduce  to  the 
speedy  administration  of  the  law  and  justice  to  permit  the 
court  to  decide  the  case  upon  an  opening  statement;  but 
while  that  was  conceded  by  the  court,  the  practice  was  con- ; 
sidered  too  dangerous  to  the  rights  of  clients  to  be  sanc- 
tioned. It  is  undoubtedly  true  that  the  method  adopted  in 
this  case  would  be  expeditious,  and  if  there  were  no  omis- 
sions or  defects  in  the  statement,  and  it  was  certain  that  the 
evidence  would  turn  out  in  accordance  with  it,  the  court 
might  be  enabled  to  do  justice ;  but  it  would  be  a  still  more 
expeditious  method  and  equally  conduce  to  the  ends  of  jus- 
tice for  the  court  to  call  up  the  attorneys  and  examine  them 
and  decide  the  case  on  what  they  say  before  calling  a  jury, 
whereby  much  time,  labor  and  expense  would  be  saved. 
But  if  parties  have  a  right  to  a  trial  by  jury  of  the  issues 
made  by  the  pleadings,  the  verdict  must  rest  upon  evidence 
or  want  of  evidence  and  not  upon  opening  statements. 

The  decision  chiefly  relied  upon  in  support  of  the  ruling 
of  the  court  was  made  in  Oscanyan  v.  Winchester  Repeat- 
ing Arms  Co.,  103  U.  S.  261,  but  that  was  a  case  where  the 
statement  disclosed  a  contract  that  was  void,  as  being  cor- 
rupt in  itself  and  prohibited  by  morality  and  public  policy. 
The  Statement  was  that  the  plaintiff  sued  for  commissions 
on  a  sale  of  arms  to  the  Turkish  government,  of  which  he 
was  then  consul  general  at  the  port  of  New  York,  and  no 
court  would  entertain  any  action  upon  such  a  contract. 
Counsel  for  appellee  is  unable  to  perceive  any  difference 
between  stating  a  corrupt  cause  of  action  contrary  to  pub- 
lic policy  and  good  morals  and  failing  to  state  a  good  cause 
of  action  or  defense,  but  the  difference  is  quite  apparent. 
If  a  cause  of  action  is  such  as  no  court  would  entertain,  a 
court  is  bound  to  raise  the  question  in  the  interest  of  due 
administration  of  justice  and  not  for  the  benefit  or  in  the 
interest  of  either  party.  Whether  a  claim  of  illegality  is 
made  by  the  pleadings  or  not,  parties  cannot  compel  a  court 
to  adjudicate  upon  alleged  rights  growing  out  of  a  contract 
void  as  against  public  policy  or  in  violation  of  public  law. 


270  Trial  Peactice  [Chap.  7 

Wright  v.  Cudahy,  168  111.  86;  CricJifield  v.  Bermudez  As- 
phalt Paving  Co.,  174  id.  466. 

In  this  case  the  defendants  had  moved  for  a  continuance 
for  a  limited  time  and  nrged  as  a  ground  that  their  remedy 
against  the  action  was  in  equity  and  that  they  desired  to 
proceed  in  a  court  of  equity,  but  the  continuance  was  de- 
nied and  the  grounds  stated  in  support  of  the  motion  form- 
ed no  basis  for  directing  the  verdict. 

The  judgments  of  the  Appellate  Court  and  the  municipal 
court  are  reversed  and  the  cause  is  remanded  to  the  muni- 
cipal court. 

Reversed  and  remanded. 


LINDLEY   V.    ATCHISON,    TOPEKA   &    SANTA   FE 
EAILROAD  COMPANY. 

Supreme  Court  of  Kansas.    1891, 

47  Kansas,  432. 

The  opinion  of  the  court  was  delivered  by 

Johnston,  J. :  D.  C.  Lindley  brought  this  action  against 
the  railroad  company  to  recover  damages  for  personal  in- 
juries alleged  to  have  been  sustained  while  traveling  on  a 
stock  train.  The  first  trial  of  the  case  resulted  in  a  verdict 
in  his  favor,  but  proceedings  in  error  were  prosecuted,  and 
the  judgment  of  the  district  court  was  reversed,  and  the 
cause  remanded  for  a  new  trial.  (Railroad  Company  v. 
Lindley,  42  Kas.  714.)  Wlien  the  case  was  called  for  trial 
the  second  time,  a  jury  was  impaneled,  after  which  the  plain- 
tiff by  his  counsel  stated  his  case  to  the  jury,  and  the  evi- 
dence by  which  he  expected  to  sustain  it.  He  then  offered 
in  evidence  a  deposition  which  had  been  taken,  when  the 
defendant  objected  to  the  reading  of  the  same,  for  the  rea- 
son that  the  amended  petition  did  not  state  facts  sufficient 
to  constitute  a  cause  of  action  in  favor  of  the  plaintiff  and 
agninst  tlie  defendant,  and  for  the  further  reason  that  the 
statement  made  to  the  jury  shows  that  the  plaintiff  was 
guilty  of  such  contributory  negligence  as  would  preclude  a 
recovery  against  the  defendant.     The  objection  was  sus- 


CHap.  7]         Opening  Statement  of  Counsel  271 

tained  by  the  court,  and  the  jury  discharged.  The  plain- 
tiff brings  the  case  here  upon  a  transcript  of  the  record, 
asking  a  review  and  a  reversal  of  the  ruling  of  the  district 
court. 

The  first  question  presented  is,  whether  the  court  may 
dispose  of  the  case  upon  the  statement  made  by  the  plain- 
tiff in  opening  his  case.  Such  a  statement  is  a  part  of  the 
procedure  of  the  trial.  The  code  provides  that,  when  the 
jury  is  sworn,  the  plaintiff  or  party  who  has  the  burden 
of  proof  may  proceed  to  state  his  case  to  the  jury,  and  the 
evidence  by  which  he  expects  to  sustain  it.  (Civil  Code, 
§  275.)  If  the  statements  or  admissions  then  made  are 
such  as  to  absolutely  preclude  a  recovery,  it  would  be  use- 
less to  consume  further  time  or  to  prolong  the  trial.  The 
court  is  warranted  in  acting  upon  the  admission  of  the 
parties  the  same  as  upon  the  testimony  offered;  and,  as  it 
may  sustain  a  demurer  to  the  evidence  of  the  plaintiff  and 
give  judgment  against  him,  it  would  seem  that  when  he 
stated  or  admitted  facts  which  were  fatal  to  a  recovery  the 
court  might  close  the  case  at  once.  The  same  question 
arose  in  like  manner  in  Oscanyan  v.  Arms  Company,  103 
U.  S.  251.  Justice  Field,  who  pronounced  the  judgment  of 
the  court,  stated  that — 

''The  power  of  the  court  to  act  in  the  disposition  of  a 
trial  upon  facts  conceded  by  counsel  is  as  plain  as  its  power 
to  act  upon  the  evidence  produced.  The  question  in  either 
case  must  be  whether  the  facts  upon  which  it  is  called  to  in- 
struct the  jury  be  clearly  established.  If  a  doubt  exists 
as  to  the  statement  of  counsel,  the  court  will  withhold  its 
directions,  as  where  the  evidence  is  conflicting,  and  leave 
the  matter  to  the  determination  of  the  jury.  In  the  trial 
of  a  cause  the  admissions  of  counsel,  as  to  matters  to  be 
proved,  are  constantly  received  and  acted  upon.  They  may 
dispense  mth  proof  of  facts  for  which  witnesses  would 
otherwise  be  called.  They  may  limit  the  demand  made  or 
the  set-off  claimed.  Indeed,  any  fact  bearing  upon  the  is- 
sues involved,  admitted  by  counsel,  may  be  a  ground  of  the 
court's  procedure,  equally  as  if  established  by  the  clearest 
proof.  And  if,  in  the  progress  of  a  trial,  either  by  such  ad- 
mission or  proof,  a  fact  is  developed  which  must  necessari- 
ly put  an  end  to  the  action,  the  court  may,  upon  its  own 
motion,  or  that  of  counsel,  act  upon  it  and  close  the  case." 


272  Trial  Peactice  [Chap.  7 

If  the  statement  made  to  the  court  and  jury  by  the  plain- 
tiff showed  beyond  dispute  that  the  injuries  which  he  re- 
ceived were  the  result  of  his  own  negligence,  he  could  not 
recover  anything  from  the  defendant,  and  it  would  have 
been  idle  to  have  proceeded  further  with  the  trial  of  the 
cause.  It  is  contended,  it  is  true,  that  the  statement  made 
contained  no  fatal  admission  or  any  statements  which  jus- 
tified the  action  of  the  court;  but,  unfortunately  for  the 
plaintiff,  the  statement  is  not  found  in  the  record.  It 
might  have  been  preserved  by  a  bill  of  exceptions  or  in  a 
case-made,  but  neither  has  been  done.  There  appears  to 
have  been  an  attempt  to  make  the  statement  a  part  of  the 
record,  as  there  is  attached  to  what  purports  to  be  the  state- 
ment a  certificate  made  by  the  official  stenographer  of  the 
district  court.  This  certificate  is  unavailing.  Such  a 
statement  can  only  be  made  a  part  of  the  record  through  a 
bill  of  exceptions  settled  and  signed  by  the  court,  and  it  is 
not  contended  that  this  has  been  done.  A  certificate  has 
been  made  by  the  judge  that  the  statement  appended  to  the 
record  is  a  true  and  correct  transcript  of  the  same;  but  it 
is  not  the  province  of  the  judge  to  authenticate  a  transcript 
of  record.  If  the  court  had  allowed  a  bill  of  exceptions 
containing  the  statement,  and  made  the  same  a  part  of  the 
record,  it  would  have  been  the  province  of  the  clerk,  and 
not  of  the  judge,  to  have  authenticated  a  transcript  of  the 
same.  It  follows  that  the  statement  is  not  before  us  for 
consideration,  and  therefore  the  ruling  and  judgment  of  the 
district  court  must  be  affirmed. 

All  the  Justices  concurring. 


REDDING  V.  PUGET  SOUND  IRON  &  STEEL  WORKS. 

Supreme  Court  of  Washington.    1905. 

36  Washington,  642. 

RuDKiN,  J. — This  was  an  action  brought  by  the  widow 
and  minor  children  to  recover  damages  for  the  death  of  the 
husband  and  father,  caused  by  the  wrongful  act  of  the  de- 
fendant.    After  the  jury  was  impaneled  to  try  the  cause  in 


Chap.  7]        Opening  Statement  of  Counsel  273 

the  court  below,  the  attorney  representina^  the  plaintiff 
made  the  opening  statement  of  his  case  to  the  jury.  Upon 
this  statement  the  defendant  moved  the  court  to  withdraw 
the  case  from  the  consideration  of  the  jury,  and  to  direct 
a  judgment  for  the  defendant.  At  the  suggestion  of  the 
court,  the  motion  was  so  amended  as  to  include  the  plead- 
ings, and,  as  thus  amended,  the  motion  was  granted,  the 
jury  discharged,  and  a  final  judgment  entered  in  favor  of 
the  defendant.     The  plaintiff  appealed. 

No  reason  is  assigned  in  support  of  a  judgment  on  the 
pleadings  except  that  the  complaint  is  defective  and  does 
not  state  facts  sufficient  to  constitute  a  cause  of  action.  The 
judgment  rendered  was  a  final  judgment  on  the  merits,  and, 
if  warranted  at  all,  must  find  its  support  in  the  opening 
statement  of  counsel,  and  not  in  some  defect  in  the  com- 
plaint. The  complaint  alone,  however  deficient,  would  not 
justify  or  sustain  a  judgment  on  the  merits  such  as  was 
rendered  by  the  court  below.  For  this  reason  we  will  not 
consider  or  pass  upon  the  sufficiency  of  the  complaint,  as 
the  same  may  be  amended  after  the  case  is  remanded.  It 
is  unnecessary  to  set  forth  the  opening  statement  of  counsel 
in  full.  We  deem  it  sufficient  to  say  that  the  statement 
was  most  general  in  its  character,  and  fell  far  short  of 
stating  facts  sufficient  to  warrant  a  recovery  against  the 
respondent.  Nothing  was  stated  affirmatively,  however, 
that  would  constitute  a  defense  to  the  action  or  bar  a  re- 
covery. When,  then,  is  a  court  justified  in  taking  a  case 
from  the  jury  and  directing  a  judgment  on  the  opening 
statement  of  counsel?  That  a  party  to  an  action  is  bound 
by  admissions  made  by  his  attorney  in  the  opening  state- 
ment of  his  case,  or  at  any  stage  of  the  trial,  and  that  the 
court  may  act  upon  such  admissions  and  direct  a  judgment 
in  accordance  therewith  in  a  proper  case  is  not  disputed  or 
denied.  This  is  all  that  was  decided  in  Lindleij  v.  Atchi- 
son etc.  B.  Co.,  47  Kan.  432,  28  Pac.  201,  and  Johnson  v. 
Spohane,  29  Wash.  730,  70  Pac.  122.  In  neither  case  was 
the  opening  statement  upon  which  the  trial  court  acted 
brought  before  the  appellate  court.  Oscanyan  v.  Arms  Co., 
103  U.  S.  261,  was  an  action  on  contract.  It  appeared  from 
the  opening  statement  of  counsel  that  the  contract  in  suit 
was  against  public  policy  and  void,  and  the  supreme  court 
of  the  United  States  held  that  upon  such  a  statement  the 

T.  p.— 18 


274  Trial  Practice  [Chap.  7 

circuit  court  properly  directed  a  verdict  for  the  defendant. 
So,  in  any  case,  if  it  affirmatively  appears  from  the  open- 
ing statement  of  counsel  that  the  contract  in  suit  is  void,  or 
if  facts  are  admitted  which  constitute  a  full  and  complete 
defense  to  the  action,  it  would  be  idle  for  the  court  to  pro- 
ceed further  with  the  trial. 

But  such  is  not  the  case  here.  Counsel  stated  too  little, 
not  too  much.  The  court  directed  a  judgment,  not  because 
the  appellant  was  admitted  oui  of  court,  but  because  the 
opening  statement  did  not  state  facts  sufficient  to  consti- 
tute a  cause  of  action.  Counsel  may  state  their  case  as 
briefly  or  as  generally  as  they  see  fit,  and  it  is  only  when 
such  statement  shows  affirmatively  that  there  is  no  cause 
of  action,  or  that  there  is  a  full  and  complete  defense  there- 
to, or  when  it  is  expressly  admitted  that  the  facts  stated 
are  the  only  facts  which  the  party  expects  or  intends  to 
prove,  that  the  court  is  warranted  in  acting  upon  it.  The 
opening  statement  now  before  the  court  contained  no  admis- 
sions which  would  constitute  a  defense  or  defeat  the  action, 
and  the  omission  of  counsel  to  state  the  case  more  fully 
is  no  justification  for  the  action  of  the  court  below  in  with- 
drawing the  case  from  the  jury. 

The  judgment  is  therefore  reversed,  and  the  cause  re- 
manded for  new  trial.^ 

Mount,  C.  J.,  and  Fullerton,  Hadley,  and  Dunbar,  JJ., 
concur. 

iln  Jordan  v.  Reed,  (1908)  77  N.  J.  L.  584,  71  Atl.  280,  it  was  held  that 
to  authorize  a  non-suit  ' '  the  statement  of  counsel,  by  its  omissions  or  ad- 
missions, must  render  it  clearly  evident  either  that  no  case  can  be  made  out 
or  that  a  recovery  is  precluded. ' ' 

In  Kelly  v.  Bergen  County  Gas  Co.,  (1906)  74  N.  J.  L.  604,  67  Atl.  21,  the 
court  stated  that  ' '  if  objection  be  made  to  a  statement  too  meagre  to  sustain 
the  plaintiff's  case,  counsel  will,  doubtless,  be  i^ermitted  to  enlarge  his  state- 
ment." 

In  Hoffman  House  v.  Foote,  (1902)  172  N.  Y.  348,  6.5  N.  E.  169,  the 
court  said:  "The  practice  of  disposing  of  cases  upon  the  mere  opening  of 
counsel  is  generally  a  very  unsafe  method  of  deciding  controversies,  where 
there  is  or  ever  was  anything  to  decide.  It  cannot  be  resorted  to  in  many 
cases  with  justice  to  the  parties,  unless  counsel  stating  the  case  to  the  jury 
deliberately  and  intentionally  states  or  admits  some  fact  that,  in  any  view 
of  the  case,  is  fatal  to  the  action." 


CHAPTER  VIII. 
JUDGMENT  ON  THE  PLEADINGS. 

COBB  V.  WM.  KENEFICK  COMPANY. 

Supreme  Court  of  the  State  of  Oklahoma.    1909, 

23  Oklahoma,  440. 

Dunn,  J. — This  action  was  begun  in  the  United  States 
court  for  the  Western  District  of  the  Indian  Territory,  at 
Muskogee,  by  the  Wm.  Kenefick  Company,  defendant  in 
error,  against  S.  S.  Cobb,  City  National  Bank  of  Wagoner. 
Ind.  T.,  First  National  Bank  of  Wagoner,  Ind.  T.,  W.  B. 
Kane,  and  J.  W.  Wallace,  to  enforce  payment  of  two  notes 
given  by  S.  S.  Cobb  to  the  said  company  to  cover  a  sub- 
scription made  by  him  to  secure  the  construction  of  a  rail- 
road to  the  city  of  Wagoner  under  the  terms  and  conditions 
as  shown  by  the  pleadings.  A  demurrer  to  the  liability 
charged  against  the  other  parties  named  who  signed  the 
notes  was  sustained  by  the  court,  from  which  no  appea] 
was  prosecuted.  Hence  they  are  eliminated  from  the  case, 
and  we  have  but  to  deal  with  the  controversy  existing  be- 
tween the  appellant  Cobb  and  the  appellee.  On  the  filing 
of  the  amended  answer,  plaintiff  filed  a  motion  for  judg- 
ment on  the  pleadings,  which  was  sustained  by  the  court, 
from  which  appeal  was  prosecuted  to  the  United  States 
Court  of  Appeals  of  the  Indian  Territory,  and  the  case  now 
comes  to  us  for  review  by  virtue  of  our  succession  to  that 

court. 

********** 

As  a  preliminary  question,  counsel  for  appellant  in  their 
brief  contend  that  such  a  motion  as  was  filed  by  appellee, 
for  judgment  on  the  pleadings,  is  unknown  to  our  Code. 
While  this  is,  strictly  speaking,  true,  yet  the  practice  is  well 
established  by  the  procedure  adopted  in  the  courts  and 
meets  nearly,  if  not  quiffe,  uniform  approval.  Black  on 
Judgments,  vol.  1,  sec.  15 ;  Ency.  Pleading  &  Practice,  vol. 

275 


276  Trial  Practice  [Chap.  8 

11,  pp.  1044, 104:5;  Hutchis 071  v.  Myers,  52  Kan.  290,  34  Pac. 
742. 

In  the  case  of  Hutchinson  v.  Myers,  supra,  Justice  Johns- 
ton in  the  consideration  thereof,  speaking  of  the  motion  for 
judgment  on  the  pleadings,  has  this  to  say : 

"Complaint  is  next  made  of  the  action  of  the  court  in 
entertaining  a  motion  for  judgment  upon  the  pleadings,  and 
in  allowing  judgment  against  Hutchison  without  testimony. 
The  motion  for  judgment  on  the  pleadings  was  equivalent 
to  a  demurrer  to  Hutchison's  answer,  and  is  a  common  and 
permissible  practice.  If  the  averments  of  the  petition  were 
sufficient,  and  the  answer  did  not  allege  a  defense,  and  no 
amendment  was  asked  for  or  allowed,  plaintiff  was  certain- 
ly entitled  to  a  judgment." 

The  general  rule  is  stated  in  23  Cyc.  769,  as  follows : 

"This  is  a  form  of  judgment  not  infrequently  used  in 
practice  under  the  reformed  Codes  of  Procedure.  It  is 
rendered  on  motion  of  plaintiff,  when  -the  answer  admits  or 
leaves  undenied  all  the  material  facts  stated  in  the  com- 
plaint; but  such  a  judgment  cannot  be  given  where  the 
pleadings  of  defendant  set  up  a  substantial  and  issuable 
defense  or  where  the  suit  is  for  unliquidated  damages  and 
the  answer  states  matters  in  mitigation." 

And,  say  the  authorities,  in  the  consideration  thereof, 
"the  pleadings  objected  to  as  insufficient  Avill  be  liberally 
construed,  and  the  motion  will  be  denied,  where  there  is  any 
reasonable  doubt  as  to  their  insufficiency."  11  Ency.  of 
Pleading  &  Practice,  1047;  McAllister  v.  Welker,  39  Minn. 
535,  41  N.  W.  107 ;  Kelley  v.  Rogers,  21  Minn.  146 ;  Giles 
Lithographic  S  Liberty  Printing  Company  v.  Recaniier 
Manufacturing  Company,  14  Daly  (N.  Y.),  475.  In  the 
case  of  Malone  et  al.  v.  Minnesota  Stone  Company,  36 
Minn.  325,  31  N.  W.  170,  the  court  in  the  syllabus  says: 
"Upon  such  motion  every  reasonable  intendment  is  in 
favor  of  the  sufficiency  of  the  pleading  objected  to." 

Now  with  this  rule,  requiring,  as  we  have  seen,  the  liberal 
construction  of  the  answer  filed  in  the  case,  the  question 
arises:  Does  the  complaint  and  the  answer,  taken  together, 
considering  those  portions  of  the  former  admitted  or  un- 
denied, in  conjunction  with  the  averments  of  the  answer, 
leave  the  case  in  such  a  situation  and  present  such  a  state- 
ment of  facts  as  will  justify  an  affirmance  of  this  judg- 


Chap.  8]  Judgment  on  the  Pleadings  277 

ment!  This  question  will  necessitate  an  analysis  of  the 
pleadings  filed,  to  the  end  that  we  may  ascertain  the  precise 
facts  shown  thereby.  If  the  complaint  states  a  cause  of  ac- 
tion which  is  undenied  by  the  answer,  and  there  is  no  new 
matter  pleaded  in  the  answer  under  the  rule  above  noticed, 
sufficient  to  deny  plaintiff  the  right  to  the  relief  demanded, 
then  the  judgment  should  be  sustained ;  otherwise  it  should 
be  reversed. 


HOOVER  V.  HORN. 

Supreme  Court  of  Colorado.    1909. 

45  Colorado,  288. 

Chief  Justice  Steele  delivered  the  opinion  of  the  court : 

The  district  court  of  Boulder  County  rendered  judgment 
in  favor  of  S.  T.  Horn  and  against  Hoover  and  Keables,  the 
defendants,  upon  a  certain  promissory  note  executed  by 
Hoover  and  Keables  and  one  Gearhart,  dated  August  4, 
1904,  and  payable  two  months  after  date,  to  the  order  of 
Horn.     The  judgment  was  rendered  on  the  pleadings. 

The  defendants'  answer,  aside  from  denials  which  were 
bad,  one  as  being  a  negative  pregnant,  and  the  other  as 
stating  a  legal  conclusion,  shows  an  attempt  to  plead  two 
inconsistent  defenses : 

First,  that  the  plaintiff,  Horn,  had,  at  the  time  the  note 
sued  on  became  due,  a  valid  chattel  mortgage  upon  proper- 
ty of  the  said  Gearhart,  of  the  value  of  five  or  six  hundred 
dollars,  and  that  he  made  no  attempt  to  realize  on  such 
property;  and, 

Second,  that,  for  the  purpose  of  inducing  the  defendants 
to  sign  the  said  note  with  Gearhart,  the  said  Horn  falsely 
and  fraudulently  pretended  to  them  that  he  had  a  good 
and  valid  chattel  mortgage  upon  property  of  the  said  Gear- 
hart, of  the  value  of  five  or  six  hundred  dollars ;  whereas, 
in  truth  and  in  fact,  as  the  said  Horn  well  knew,  all  the 
property  originally  covered  by  the  chattel  mortgage  had, 
at  that  time,  been  removed  from  the  county  of  Boulder  by 


278  TmAh  Peactice  [Chap.  8 

the  said  Gearhart,  and  sold  and  disposed  of;  that  the  de- 
fendants believed  said  representations  to  be  true,  and  were 
induced  thereby  to  sign  the  said  note  as  sureties  for  the 
said  Gearhart,  in  consideration  of  an  extension  of  two 
months,  by  Horn  to  Gearhart,  of  the  term  of  said  chattel 
mortgage. 

The  rule  adopted  by  this  court  with  reference  to  judg- 
ment ujDon  the  pleadings  is  thus  stated  in  the  case  of  Mills 
et  al.  V.  Hart,  24  Colo.  505,  wherein  Mr.  Justice  Gabbert 
states:  ''As  a  general  proposition,  a  motion  for  judgment 
on  the  pleadings,  based  on  the  facts  thereby  established, 
cannot  be  sustained,  except  where,  under  such  facts,  a  judg- 
ment different  from  that  pronounced  could  not  be  rendered ; 
notwithstanding  any  evidence  which  might  be  produced 
{Rice  V.  Bush,  16  Colo.  484) ;  or  that  such  a  motion  cannot 
be  sustained,  unless,  under  the  admitted  facts,  the  moving 
party  is  entitled  to  judgment,  without  regard  to  what  the 
findings  might  be  on  the  facts  upon  w^hich  issue  is  joined; 
so  that,  in  determining  the  rights  of  the  defendants  to  the 
judgment  given  them,  the  real  question  to  determine  is,  the 
sufficiency  of  the  admitted  facts  to  warrant  the  judgment 
rendered,  and  the  materiality  of  those  on  which  issue  was 
joined."  And,  quoting  from  9  Col.  App.  211,  Judge  Gab- 
bert further  states :  ''A  motion  for  judgment  on  the  plead 
ings  cannot  prevail,  unless,  on  the  facts  thereby  established, 
the  court,  as  a  matter  of  law,  can  pronounce  a  judgment  on 
the  merits;  that  is,  determine  the  rights  of  the  parties  \ 
the  subject  matter  of  the  controversy,  and  render  a  judg- 
ment in  relation  thereto  which  is  final  between  the  parties, 
Such  a  motion  cannot,  under  the  guise  of  a  motion  for 
judgment  on  the  pleadings,  be  substituted  for  some  other 
plea." 

Upon  a  motion  for  judgment  on  the  pleadings  inconsis- 
tent defenses  cannot  be  regarded  as  vitiating  one  anothei , 
but  if  any  good  defense  is  stated  in  the  answer,  it  must  be 
considered  as  true.  The  answer  states  that  the  owner  of 
the  note  represented  to  these  defendants  that  he  held  a 
flialtel  mortgage  which  was  a  first  lien  upon  certain  prop- 
erty of  Gearhart,  and  that  the  property  was  of  the  value  of 
five  or  six  lumdred  dollars.  The  answer  further  alleges 
that  llicy,  believing  these  representations,  agreed  to  be- 
coiiic,  and  did  become,  sureties  n])on  the  note  of  Gearhart. 


Chap.  8]  Judgment  on  the  Pleadings  279 

The  answer  further  states  that,  at  the  time  the  said  mort- 
gage was  given,  all  of  the  property  mentioned  therein  had 
been  removed  from  the  county  of  Boulder,  where  the  prop- 
erty was  supposed  to  have  been  situated,  and  had  been  sold 
by  said  Gearhart,  and  that  the  plaintiff  knew  of  such  facts. 
These  matters  are  perhaps  not  properly  pleaded,  and  a 
motion  to  strike  the  answer  because  it  contained  but  one 
defense  and  that  defense  contained  several  contradictory 
and  inconsistent  statements,  might  properly  have  been 
granted;  but  it  was  improper  to  grant  a  motion  for  judg- 
ment upon  the  pleadings.  If  the  defendants  were  induced 
to  become  the  sureties  of  Gearhart  upon  the  statement  of 
the  holder  of  the  mortgage  that  he  had  a  valid  first  lien 
upon  the  property,  when  in  truth  and  in  fact  there  was  no 
property  of  the  mortgagor  in  that  county  upon  which  he 
had  a  lien,  it  deprived  these  sureties  of  the  right  to  pay  off 
the  mortgage  and  become  subrogated  to  the  rights  of  the 
mortgagee. 

The  judgment  will  be  reversed,  and  the  cause  remanded. 

Reversed  and  remanded. 

Mk.  Justice  Gabbekt  and  Mr.  Justice  Hill,  concur. 


STERNBERG  V.  LEVY. 

Supreme  Court  of  Missouri,    1901. 

159  Missouri,  617, 

Marshall,  j   *  *  *  * 

It  is  claimed  that  the  motion  for  judgment  on  the  plead- 
ings is  a  demurrer,  and  hence  is  part  of  the  record  proper, 
and  therefore  no  motion  for  new  trial  or  bill  of  exceptions 
was  necessary,  but  that  the  court  will  review  the  judgment 
upon  the  record,  so  constituted. 

A  motion  for  judgment  on  the  pleadings  is  not  a  demur- 
rer. It  partakes  of  some  of  the  qualities  of  a  demurrer 
but  it  is  not  a  demurrer,  and  hence  it  is  not  a  part  of  the 
record.  It  is  a  matter  of  exception  and  can  only  be  made 
a  ])art  of  the  record  by  a  bill  of  exceptions. 

It  partakes  of  the  nature  of  a  demurrer,  in  that,  it  ad- 


280  Tkial  Practice  [Chap.  8 

mits  all  facts  that  are  well  pleaded,  and  if  it  is  overruled 
the  order  overruling  it  is  not  a  final  judgment  from  which 
an  appeal  will  lie,  but  the  party  may  plead  over  or  proceed 
to  trial  on  the  issues  joined.  On  the  contrary,  if  it  is  sus- 
tained, judgment  goes  at  once,  whereas  if  a  demurrer  is 
sustained  the  order  is  not  a  final  judgment,  the  party  has 
a  right  to  plead  over,  and  it  is  only  in  case  of  refusal  to 
plead  over  that  final  judgment  can  be  rendered  on  demur- 
rer. 

There  is  no  motion  for  judgment  on  the  pleadings  con- 
tained in  this  record.  The  bill  of  exceptions  filed  does  not 
call  for  any  such  motion,  and  therefore  there  is  no  such 
question  ojDen  to  review  in  this  case. 


CHAPTER  IX. 

DEMURRER  TO  THE  EVIDENCE. 

COPELAND  V.  NEW  ENGLAND  INSURANCE  COM- 
PANY. 

Supreme  Judicial  Court  of  Massachusetts.    1839. 

22  Pickering,  135. 

This  was  assumpsit  on  a  policy  of  insurance,  whereby 
the .  defendants  insured  the  sum  of  $2,500  on  the  brig 
Adams,  at  and  from  Wilmington  to  Jamaica  and  at  and 
from  thence  to  her  port  of  discharge  in  the  United  [States. 
It  was  alleged,  that  the  vessel  was  totally  lost  upon  a  coral 
reef  near  the  Isle  of  Pines,  w^hile  on  her  voyage  from  Ja- 
maica to  Wilmington. 

Plea,  the  general  issue. 

The  plaintiffs,  in  order  to  maintain  the  issue  on  their 
part,  introduced  the  policy,  the  register  of  the  vessel,  the 
written  abandonment  of  their  interest,  and  the  depositions 
of  three  witnesses,  which  had  been  taken  on  behalf  of  the 
defendants,  detailing  the  circumstances  attending  the  loss 
of  the  vessel.  They  also  examined  a  witness  viva  voce,  and 
his  testimony  was  reduced  to  writing.  The  defendants, 
''confessing  all  said  evidence  to  be  true,  and  admitting 
every  fact  and  every  conclusion  which  the  evidence  thus 
given  by  the  plaintiffs  conduces  to  prove,"  say  that  the 
matters  thus  shown  in  evidence  are  not  sufficient  in  law  to 
maintain  the  issue  on  the  part  of  the  plaintiffs,  and  pray 
judgment  that  the  jury  m.ay  be  discharged  from  giving  any 
verdict  upon  such  issue,  and  that  the  plaintiffs  may  be 
barred  from  having  their  action  against  them.  The  plain- 
tiffs joined  in  the  demurrer. 

Morton,  J.  delivered  the  opinion  of  the  Court.  This  is 
assumpsit  on  a  policy  of  insurance  on  the  brig  Adams.  It 
is  alleged,  that  the  brig  was  totally  lost  upon  a  coral  reef 

281 


282  Teial  Practice  [Chap.  9 

near  the  Isle  of  Pines  on  the  coast  of  Cuba.  The  admis- 
sions of  the  parties  reduced  the  case  to  the  simple  question, 
whether  the  loss  was  caused  by  any  of  the  perils  insured 
against.  To  prove  the  affirmative  the  plaintiffs  introduced 
the  testimony  of  four  witnesses,  and  here  submitted  their 
case.  The  defendants  believing  this  evidence  to  be  insuf- 
ficient to  support  the  action,  demurred  to  it.  The  plaintiff 
joined  in  the  demurrer;  and  the  case  has  been  argued  upon 
the  evidence  thus  brought  before  us. 

This  mode  of  trial  is  very  unusual  in  this  State.  No 
case  of  the  kind  has  happened  since  the  commencement  of 
our  Eeports ;  and  it  is  believed  that  very  few  instances  oc- 
curred before  that  time.  But  however  unusual  the  resort 
to  this  mode  of  trial  may  be,  it  cannot  be  questioned,  that 
the  legal  right  to  demur  to  evidence  exists,  under  proper 
regulations  and  restrictions.  However,  as  its  purpose 
seems  to  be,  to  withdraw  facts  from  the  tribunal  specially 
provided  for  their  determination,  it  is  no  favorite  of  our 
system.  And  when  the  hazard  and  disadvantages  which  it 
imposes  upon  the  party  demurring,  are  duly  considered, 
and  the  few  cases  to  which  it  may  properly  apply  are  re- 
collected, there  will  be  no  danger  of  its  coming  into  common 
practice. 

There  are  undoubtedly  cases,  though  they  are  rare,  in 
which  a  demurrer  to  evidence  may  be  safely  and  properly 
taken.  Where  all  the  evidence  in  a  case,  consists  of  writ- 
ten instruments,  and  these  are  introduced  by  the  party 
having  the  affirmative,  his  opponent  may  safely  demur  to 
the  evidence,  and  be  sure  thereby  to  bring  the  merits  of  his 
case  before  the  court.  As  it  would  be  the  province  of  the 
court  to  determine  the  construction  and  legal  operation  of 
the  instruments,  they  would  have,  by  the  concession  of 
the  parties,  all  the  materials  necessary  to  enable  them  to  de- 
termine the  legal  rights  of  the  parties  in  the  action.  The 
facts  being  thus  before  them  they,  in  applying  the  law  to 
thorn,  are  in  the  exercise  of  their  appropriate  duty. 

P'Ut  a  demurrer  is  not  confined  to  written  evidence. 
Wlioro  witnesses  positively  testify  to  certain  definite  facts, 
and  there  is  no  discrepancy  between  them,  and  no  other  evi- 
denco  to  be  offered,  a  demurrer  will  properly  bring  these 
facts  before  the  court,  and  enable  them  to  judge  whether 


Chap.  9]  BemuereK  to  the  Evidence.  283 

they  will  sustain  the  action  or  defence  wliich  they  are  in- 
troduced to  support. 

But  it  not  infrequently  happens,  that  the  plaintiff  or 
party  having  the  affirmative,  attempts  to  support  the  issue 
on  his  part  by  indirect  and  circumstantial  evidence.  And 
when  the  positions  are  to  be  established  by  inferences  from 
many  other  facts,  it  is  difficult,  if  not  impracticable,  to  ad- 
mit a  demurrer. 

It  may  be  well  here  to  consider  the  effect  of  a  demurrer 
to  evidence.  And  we  shall  do  it  with  the  more  care,  be- 
cause we  apprehend,  that  it  was  not  duly  considered  or  per- 
fectly understood  by  the  counsel  on  either  side.  It  seems 
to  have  been  supposed  to  be  an  admission  of  the  truth  of 
the  evidence ;  and  the  Court  have  been  called  upon,  suppos- 
ing it  all  to  be  true,  to  determine  what  inferences  may  be 
drawn  from  it,  and  whether  it  would  be  competent  for  the 
jury  upon  it  to  find  a  verdict  for  the  plaintiffs.  And  it 
has  been  argued,  that  if  we  would  set  aside  a  verdict  found 
for  the  plaintiffs  on  this  evidence,  we  must  render  judg- 
ment for  the  defendants,  on  the  demurrer. 

But  we  think  this  is  a  mistaken  view  of  the  subject  and 
fails  .to  give  to  the  demurrer  its  legal  effect.  It  leaves  it 
to  the  court  to  draw  inferences  from  the  circumstances 
proved  and  to  judge  of  the  weight  of  the  evidence;  which 
would  be  trenching  upon  the  province  of  the  jury.  The 
offect  of  a  demurrer  to  evidence,  is  not  only  to  admit  the 
truth  of  the  evidence,  but  the  existence  of  all  the  facts 
which  are  stated  in  that  evidence  or  which  it  conduces  to 
prove.  ITence  that  most  acute  and  learned  pleader,  Mr 
Justice  Gould,  says,  that  this  demurrer,  'though  called  a 
demurrer  to  evidence,  is  essentiallv  a  demurrer  to  the  facts 
slioivn  in  evidence."  Gould  on  Pleading.  47,  48,  49.  As 
a  demurrer  to  a  declaration  asks  the  opinion  of  the  court 
upon  the  facts  properly  pleaded,  so  a  demurrer  to  evi- 
dence asks  their  opinion  upon  the  facts  shown  in  evidence. 
In  both  cases  the  decision  is  purely  a  matter  of  law,  and 
cannot  involve  any  questions  of  fact  on  the  evidence. 

The  true  question  alwaA's  raised  by  this  kind  of  demurrer 
is,  not  what  it  is  competent  for  the  jury  to  find,  but  what 
the  evidence  tendfi  to  prove.  This  view  is  fully  sustained 
by  a  most  clear  and  elaborate  opinion  given  by  the  very 
learned  Lord  Chief  Justice  Eyre,  in  pronouncing  the  judg- 


284  Trial.  Peactice  [Chap.  9 

ment  of  the  House  of  Lords  in  the  case  of  Gibson  v.  Hunter, 
2  H.  Blackstone,  187.  This  case  contains  a  most  lucid  and 
able  discussion  of  the  whole  subject.  He  says,  the  precise 
operation  of  a  demurrer  to  evidence  is,  to  take  from  the 
jury  and  refer  to  the  judges  the  application  of  the  law  to 
the  fact.  In  the  nature  of  things  the  facts  are  first  to  be 
ascertained.  Wliere  the  evidence  is  written  or,  if  in  parol, 
is  positive,  definite  and  certain,  the  party  offering  the  evi- 
dence is  bound  to  join  in  demurrer.  But  the  reason  of  the 
rule  ''does  not  apply  to  parol  evidence  which  is  loose  and 
indeterminate,  which  may  be  urged  with  more  or  less  ef- 
fect to  a  jury;  and  least  of  all  will  it  apply  to  evidence  of 
circumstances,  which  evidence  is  meant  to  operate  beyond 
the  proof  of  the  existence  of  those  circumstances,  and  to 
conduce  to  the  proof  of  the  existence  of  other  facts.  And 
yet  if  there  be  no  demurrer  in  such  cases,  there  will  be  no 
consistency  in  the  doctrine  of  demurrers  to  evidence,  by 
which  the  application  of  the  law  to  the  fact  on  an  issue  is 
meant  to  be  withdrawn  from  a  jury  and  transferred  to 
the  judges.  If  the  party  who  demurs,  will  admit  the  evi- 
dence of  the  fact,  the  evidence  of  which  fact  is  loose  and  in- 
determinate, or  in  the  case  of  circumstantial  evidence,  if  he 
will  admit  the  existence  of  the  fact,  which  the  circumstances 
offered  in  evidence  conduce  to  prove,  there  will  then  be  no 
more  variance,  in  this  parol  evidence,  than  in  a  matter  in 
writing,  and  the  reasons  for  compelling  the  party  who  of- 
fers the  evidence  to  join  in  demurrer,  will  then  apply,  and 
the  doctrine  of  demurrers  to  evidence  will  be  uniform  and 
consistent."     See  also  Mid  diet  on  v.  BaJcer,  Cro.  Eliz.  753. 

This  doctrine  seems  to  be  foimded  upon  and  well  sup- 
ported by  the  case  of  Wright  v.  Pindar,  reported  in  Style, 
34,  and  also  in  Aleyn,  ig,  *  *  *  * 

The  same  principles  are  recognized  by  the  Supreme 
Court  of  the  United  States,  in  Young  v.  Black,  7  Cranch, 
5G5.  Mr.  Justice  Story,  in  giving  the  judgment  of  the 
court,  says,  '*  the  party  demurring  is  bound  to  admit  as 
tine  not  only  all  the  facts  proved  by  the  evidence  intro- 
dnood  by  the  other  party,  but  also  all  the  facts  which  that 
evidence  may  legally  conduce  to  prove." 

In  this  case,  Fowle  v.  Common  Council  of  Alexandria,  11 
Whcaton,  320,  the  learned  judge  says,  ''It  is  no  part  of  the 


Chap.  9]  Demurrer  to  the  Evidence.  285 

object"  of  a  demurrer  to  evidence  ''  to  bring  before  the 
court  an  investigation  of  the  facts  in  dispute,  or  to  weUjh 
the  force  of  testimony,  or  the  presumptions  arising  from 
the  evidence.  That  is  the  proper  province  of  the  jury. 
The  true  and  proper  object  of  such  a  demurrer  is  to  refer 
to  the  court  the  law  arising  from  the  facts.  It  supposes, 
therefore,  the  facts  to  be  already  ascertained  and  admitted, 
and  that  nothing  remains  but  for  the  court  to  apply  the 
law  to  those  facts." 

Judge  Gould  expresses  the  same  doctrine  in  a  little  dif- 
ferent language.  He  says,  §  47,  *'The  object  of  a  demurrer 
is  to  bring  in  question  on  the  record,  the  relevancy  of  the 
evidence  on  one  side,  and  to  make  the  question  of  its  relev- 
ancy, the  sole  point  on  which  the  issue  in  fact  is  to  be  de- 
termined. ' '  He  adds,  §  51,  "  that  evidence  is  always  relev- 
ant to  any  issue  it  conduces  in  any  degree  to  prove.  And 
as  its  relevancy  is  the  only  point  of  which  the  court  can 
judge,  it  follows,  that  it  can  never  be  safe  for  a  party  to 
demur  to  evidence  which  is  clearly  relevant  to  the  whole 
issue,  viz.  which  clearly  conduces  in  any  degree  to  prove  the 
whole  affirmative  side  of  the  issue." 

The  result  of  these  authorities  is,  that  a  demurrer  to  evi- 
dence admits  not  only  all  the  facts  directly  stated  in  it,  but 
also  all  the  facts  which  the  evidence  in  any  degree  tends  to 
prove. 

Where  the  evidence  consists  of  written  documents  or  of 
direct  and  positive  testimony  of  witnesses,  there  can  be  no 
difficulty  in  demurring  to  it  and  of  raising  the  question  of 
law  on  the  facts.  But  where  the  evidence  is  circum- 
stantial or  uncertain,  leaving  much  to  inference  and  pre- 
sumption, it  is  not  easy  or  safe  to  frame  a  demurrer  upon 
it,  or  a  rejoinder  thereto.  It  will  not  be  sufficient  to  demur 
to  the  evidence  generally  and  leave  the  court  to  ascertain 
what  it  tends  to  prove,  or  what  inferences  may  be  drawn 
from  it.  But  in  reciting  the  evidenc-e,  in  the  demurrer,  the 
party  demurring  must  state  distinctly  the  facts  which  the 
evidence  tends  to  prove,  and  which  he  thereby  admits,  that 
the  court  may  readily  perceive  the  facts  upon  which  they 
are  to  decide. 

Judge  Gould,  adopting  the  language  of  Lord  Chief  Jus- 
tice Eyre,  says,  "Where  the  evidence  is  circumstantial,  the 
party  demurring  must  distinctly  admit  upon  the  record 


286  Trial  Peactice  [Chap.  9 

every  fact  and  every  conclusion,  in  favor  of  the  opposite 
party,  which  the  evidence  conduces  to  prove ;  otherwise  he 
is  not  bound  to  join  in  the  demurrer,  because  without  such 
admission  the  iveight  as  well  as  the  relevancy  of  the  evi- 
dence would  be  referred  to  the  court." 

And  Mr.  Justice  Story,  in  the  case  before  cited,  uses  this 
language:  '*No  party  can  insist  upon  the  others  joining  in 
the  demurrer,  without  distinctly  admitting,  upon  the  rec- 
ord, every  fact  and  every  conclusion,  which  the  evidence 
conduces  to  prove."  This  is  exactly' the  doctrine  of  Gib- 
son V.  Hunter. 

Now  in  the  case  at  bar,  the  defendants  demur  generally 
to  evidence,  which  is  circumstantial,  loose  and  indeter- 
minate. And  so  far  from  reciting  the  facts  and  conclu- 
sions which  the  evidence  tends  to  prove,  and  which  they  in- 
tend to  admit,  they  refer  generally  to  all  the  evidence  as  it 
exists  in  the  form  of  depositions,  consisting  of  a  great  va- 
riety of  interrogatories  and  cross  interrogatories,  and  the 
answers  to  them,  which  are  neither  direct  and  positive  nor 
consistent.  This  we  think  to  be  clearly  irregular.  To 
quote  again  the  language  of  Judge  Story,  ' '  The  defendants 
have  demurred,  not  to  facts  but  to  evidence  of  facts,  not  to 
admissions,  but  to  mere  circumstances  of  presumption." 

The  evidence  offered  in  this  case  tends  to  show,  and  un- 
doubtedly does  show,  that  the  brig  insured,  in  a  squall, 
(not  a  severe  one  to  be  sure,)  ran  upon  a  coral  reef  and  was 
totally  lost.  This  proof,  by  itself,  clearly  would  support 
the  plaintiffs'  action.  But  the  defendants  contend  that 
the  testimony  of  the  same  witnesses  tends  to  show,  that  the 
vessel  was  run  on  shore  intentionally  or  through  the  gross 
incapacity  of  the  master.  Now  these  are  distinct  sub- 
stantive facts,  which  the  defendants  wish  to  establish.  It 
is  true  the  evidence  tends  strongly,  very  strongly,  to  prove 
them.  But  the  defendants  cannot  avail  themselves  of 
these  grounds  of  defence  on  a  demurrer  to  the  evidence. 
If  llie  plaintiff's  evidence  does  not  show  a  prima  facie  case, 
tlie  defendants  may  demur.  But  if  they  wish  to  set  up  any 
facts  in  defence,  they  must  resort  to  the  jury  to  have  them 
estaljlished.  Tlie  depositions  introduced  by  the  plaintiffs 
were  taken  by  the  defendants,  and  tlius  the  facts  may  bo 
prescnlrd  in  an  order  and  a  form  most  favorable  to  the 
hitter.      Tlie  defr'Tidants  too,  by  demurring,  admit  the  facts 


Chap.  9]  Demureer  to  the  Evidence.  287 

which  the  evidence  conduces  to  prove  for  the  plaintiffs, 
and  cannot  avail  themselves  of  such  as  it  tends  to  show  for 
the  defendants.  The  plaintit¥s,  by  joining  in  the  de- 
murrer, did  not  admit  the  truth  of  that  part  of  the  testi- 
mony which  is  favorable  to  the  defendants,  much  less  any 
inferences  which  may  be  drawn  from  it.  If  the  defend- 
ants wish  to  set  up  any  facts  to  exonerate  or  discharge 
them,  they  must  look  to  the  jury  to  establish  them.  The 
Court  cannot  examine,  compare  and  weigh  the  different 
parts  of  the  evidence.  It  would  be  performing  a  duty 
which  the  law  has  not  imposed  upon  them,  and  which  they 
uniformly  refuse  to  accept  from  the  agreement  of  the  par- 
ties themselves. 

Without  going  into  a  further  examination  of  the  evi- 
dence, we  are  fully  convinced  that  the  demurrer  was  not 
properly  tendered,  that  the  evidence  did  not  present  a 
proper  case  for  a  demurrer,  that  the  plaintiffs  ought  not 
to  have  joined  in  it,  but  to  have  prayed  the  judgment  of 
the  court  whether  the  defendants  should  be  admitted  to  it. 

The  Court  have  an  important  discretion  in  allowing  or 
disallowing  demurrers  to  evidence.  Although  a  demurrer 
is  a  matter  of  right  and  the  opposite  party  may  be  com- 
pelled to  join  in  it,  when  properly  presented,  yet  he  should 
always  be  careful  to  see  that  it  contains  the  proper  admis- 
sions before  he  joins  in  it.  On  the  whole,  we  are  satisfied, 
that  the  demurrer  was  tendered  and  joined  without  fully 
examining  and  duly  considering  the  nature  and  effect  of 
the  measure. 

And  we  think,  not  as  Lord  Chief  Justice  Rolle  said, 
"that  both  parties  have  misbehaved  themselves,"  but  in 
the  language  of  the  Supreme  Court  of  the  United  States, 
''that  the  demurrer  has  been  so  incautiously  framed,  that 
there  is  no  manner  of  certainty  in  the  state  of  facts  upon 
which  any  judgment  can  be  founded.  Under  such  a  pre- 
dicament, the  settled  practice,  is  to  award  a  new  trial,  upon 
the  ground  that  the  issue  between  the  parties  has  not  been 
tried."  This  was  done  in  the  analogous  cases  of  W right 
V.  Pindar,  and  Gibson  v.  Hynfer,  by  the  PTouse  of  Lords, 
and  in  Fowle  v.  Common  Council  of  Alexandria,  bv  the 
Supreme  Court  of  the  United  States. 

Venire  facias  de  novo  awarded. 


288  Teial  Peactice  [Chap.  9 

GALVESTON,  HARRISBURG  &  SAN  ANTONIO  RAIL- 
WAY COMPANY  V.  TEMPLETON. 

Supreme  Court  of  Texas.    1894. 

87  Texas,  42. 

Brown ;  Associate  Justice. — Defendant  in  error,  plaintiff 
below,  brought  this  suit  by  petition  filed  August  1,  1891,  in 
the  District  Court  for  the  Forty-fifth  Judicial  District  of 
Bexar  county,  to  recover  $15,000  damages,  alleged  to  have 
been  sustained  by  him  on  or  about  August  20,  1890,  at  San 
Antonio,  by  reason  of  injuries  received,  while  in  the  service 
of  appellant  and  in  the  discharge  of  his  duties  as  switch- 
man, in  attempting  to  mount  a  flat  car  on  which  was  a  de- 
fective brake,  causing  him  to  be  thrown  from  the  car,  his 
right  leg  broken,  and  thereby  made  much  shorter  than  the 
other,  and  rendering  him  a  cripple  for  life,  unable  to  per- 
form manual  labor.  From  the  injury  he  charges  that  he 
suffered  great  physical  pain  and  mental  anguish. 

There  was  a  trial  by  jury.  The  plaintiff  having  closed  his 
evidence,  the  defendant  demurred  thereto;  upon  which 
plaintiff  joined  issue,  and  the  court  overruled  the  demurrer 
and  instructed  the  jury  to  find  for  the  plaintiff  the  actual 
damages  by  him  sustained,  if  any,  as  the  only  question  left 
for  their  determination.  There  was  a  verdict  and  judgment 
in  favor  of  plaintiff  for  $4,600.  Defendant  made  its  motion 
for  a  new  trial,  which  being  overruled,  it  excepted  thereto 
and  in  open  court  gave  notice  of  appeal ;  and  thereafter  per- 
fected its  appeal  by  filing  a  supersedeas  bond  and  an  assign- 
ment of  errors, 

Tlie  Court  of  Civil  Appeals  affirmed  the  judgment  of  the 
District  Court, 

Tliis  case  is  presented  to  this  court  upon  the  following 
pr()j)ositions  and  objections  to  the  judgment  of  the  District 
Court  and  tlie  ('ourt  of  Civil  Appeals: 

Third.  Tliat  tlie  Court  of  Civil  Appeals  erred  in  holding 
that  upon  overruling  the  defendant's  demurrer  to  evidence 
the  court  below  properly  refused  to  submit  the  case  to  the 


Cbap.  9]  Demurrer  to  the  Evidence.  289 

jury  upon  the  evidence,  to  determine  whether  or  not  the 
plaintiff  was  entitled  to  a  verdict. 

The  defendant  having  demurred  to  the  evidence,  and  the 
plaintiff  having  joined  in  it,  the  case  was  as  to  the  facts  and 
the  right  of  plaintiff  to  recover  withdrawn  from  the  jury, 
and  must  be  decided  by  the  court.  Booth  v.  Cotton,  13 
Texas,  362;  Tierney  v.  Frazier,  57  Texas,  443;  Thornton  v. 
Bank,  3  Pet.  40;  Ohaugh  v.  Finn,  4  Ark.  110;  1  Tidd's 
Prac.  575. 

If  the  damages  claimed  by  plaintiff  were  liquidated,  the 
court  might  decide  the  entire  case,  for  in  that  event  there 
would  be  no  issue  to  submit  to  the  jury.  But  when,  as  in 
this  case,  the  damages  claimed  are  unliquidated  that  ques- 
tion must  be  submitted  to  a  jury  to  ascertain  the  amount. 
Ins.  Co.  V.  Lewis,  1  So.  Rep.  863;  Boyd  v.  Gilchrist,  15  Ala. 
856;  Young  v.  Foster,  7  Port.  (Ala.)  420;  1  Tidd's  Prac. 
575 ;  2  Id.  866. 

When  a  demurrer  to  evidence  has  been  presented  and 
joined  in  by  the  opposite  party,  the  court  may  submit  the 
case  to  the  jury  to  ascertain  the  damages  before  deciding 
upon  the  demurrer,  and  hold  the  verdict  subject  to  decision 
on  the  demurrer.  Or  if  the  demurrer  be  decided  before  the 
jury  then  empanelled  has  been  discharged,  the  court  may 
submit  the  question  of  damages  to  the  jurj^  that  heard  the 
evidence.  Or  the  court  may,  upon  presentation  of  the  de- 
murrer, discharge  the  jury,  and  in  case  it  be  overruled  em- 
panel a  new  jury  to  assess  the  damages.  2  Tidd's  Prac. 
866;  Ins.  Co.  v.  Leivis,  1  So.  Rep.  863;  Ohaugh  v.  Finn,  4 
Ark.  110;  Young  v.  Foster,  7  Port.  (Ala.)  420;  Boyd  v. 
Gilchrist,  15  Ala.  856;  Humphreys  v.  West,  3  Rand.  516. 

It  is  the  better  practice,  we  think,  to  submit  the  question 
of  damages  to  the  jury  that  has  heard  the  evidence,  either 
before  or  after  decision  on  the  demurrer,  by  which  delay 
and  cost  would  be  saved  for  the  parties  to  the  action. 
Whether  it  be  submitted  before  or  after  the  decision  upon 
the  demurrer  can  not  be  of  importance  nor  work  injury  to 
either  party.  It  was  not  error  to  submit  the  issue  as  to  the 
amount  of  damages  to  the  jury  then  empanelled,  after  the 
demurrer  had  been  overruled. 

Plaintiff  in  error  claims  that  the  court,  after  overruling 
its  demurrer  to  the  evidence,  should  have  submitted  the  case 
T.  p.— 19 


290  Teial  Practice  [Cbap.  9 

to  tlie  jury  on  the  evidence  as  to  the  right  of  plaintiff  to  re- 
cover. This  would  be  a  most  extraordinary  result  of  a  de- 
murrer to  evidence.  By  it  defendant  would,  under  that 
practice  (if  it  were  the  practice  in  any  court),  withdraw  the 
case  from  the  jury  as  to  the  rights  of  the  plaintiff,  and  in 
case  the  decision  was  favorable  to  the  defendant,  the  plain- 
tiff would  be  deprived  of  a  trial  by  jury  at  the  election  of 
the  defendant ;  but  in  case  the  court  to  which  defendant  ap- 
pealed should  decide  against  it,  then  it  must  be  allowed  that 
trial  which  it  sought  to  avoid  by  the  demurrer.  It  would 
have  been  error  to  have  done  what  plaintiff  in  error  claims 
tlie  court  should  have  done.    It  would  have  been  contrary  to 

tlie  kiw,  against  reason,  and  against  the  right. 

********** 

The  judgments  of  the  District  Court  and  the  Court  of 
Civil  Appeals  are  affirmed. 

Affirined.^ 

iComparison  between  Demurrer  to  Eviaence  and  Motion  for  a  Directed 
Verdict.  In  Eberstadt  v.  State,  (1898)  92  Tex.  94,  45  S.  W.  1007,  the  court 
said:  "The  effect  of  the  motion  made  by  the  defendants  to  instruct  the  jury  to 
find  for  them  has  practically  the  same  effect  as  a  demurrer  to  the  evidence  in 
calling  for  the  opinion  of  the  court  on  the  legal  sufficiency  of  the  proof,  but 
it  does  not  have  the  effect  to  withdraw  the  case  from  the  jury.  If  a  motion 
be  overruled  the  trial  must  proceed  as  if  it  had  not  been  made,-  and  the 
court  can  not  because  the  motion  has  been  overruled  instruct  the  jury  to  find 
for  the  plaintiff  upon  the  ground  that  the  motion  admitted  the  truth  of  the 
evidence  adduced.  2  Thomp.  on  Trials,  sec.  2270,  p.  1624;  Harris  v.  Woody, 
9  Mo.  113.  The  difference  between  the  demurrer  to  the  evidence  and  the 
motion  to  instruct  a  verdict  for  the  defendant  is  technical,  it  is  true,  but  it  is 
Btill  a  practical  difference,  in  this,  that  the  defendant  does  not  choose  to  with- 
draw his  case  from  the  jury  and  rely  upon  the  testimony  already  introduced, 
but  exercises  his  option  of  calling  for  the  judgment  of  the  court  upon  the 
strength  of  the  plaintiff's  case,  with  the  privilege  in  case  the  decision  is 
against  him  of  proceeding  to  develop  his  defense  to  the  plaintiff 's  action. 
Instead  of  moving  the  court  to  instruct  the  jury,  the  defendants  might  have 
presented  a  written  instruction  to  that  effect,  and  it  being  refused  could  have 
proceeded  to  introduce  their  testimony." 


FRITZ  V.  CLARK. 

Supreme  Court  of  Indiana.    1881. 

80  Indiana,  591. 

Bert,  (^.--Tliis  action  was  brought  by  the  appellees 
against  the  appellant  to  recover  sixty-six  acres  of  land  in 
||()w;ii(]  ccHiuty,  Indiana.    The  complaint  consisted  of  three 


Chap.  9]  Demurrer  to  the  Evidence.  291 

paragraphs.  *  *  *  An  answer  of  three  paragraphs  was 
then  filed.  *  *  *  a  reply  in  denial  was  filed  to  the  second 
paragraph  of  the  answer,  and  the  issues  thus  formed  were 
submitted  to  a  jury  for  trial.  After  the  evidence  on  both 
sides  had  been  heard,  the  appellees  demurred  to  the  evi- 
dence. The  court  withdrew  the  case  from  the  jury,  sus- 
tained the  demurrer  to  the  evidence,  and  rendered  final 
judgment  thereon  for  the  appellees,  to  all  of  which  the  ap- 
pellant duly  excepted.  A  motion  for  a  new  trial  was  also 
made  and  overruled. 

Various  errors  have  been  assigned  in  this  court.  Among 
others,  it  is  insisted  that  the  court  erred  in  sustaining  the 
appellees'  demurrer  to  the  evidence;  and,  as  the  conclusion 
reached  by  us  upon  this  question  is  decisive  of  the  case,  the 
others  will  not  be  considered. 

The  appellant  insists  that  the  evidence  of  a  party  who 
demurs  will  not  be  considered  upon  such  demurrer,  and  in 
the  absence  of  the  appellees'  evidence  the  demurrer  should 
have  been  overruled. 

The  question  thus  raised  has  not  been,  so  far  as  we  are 

informed,  decided  in  this  State.  *  *  * 

********** 

There  are  many  cases  in  our  reports  where  the  defendant 
has  demurred  to  the  evidence  of  the  plaintiff.  The  follow- 
ing are  among  them :  Lindley  v.  Kelley,  42  Ind.  294 ;  Pin- 
nell  v.  Stringer,  59  Ind.  555 ;  FoucJi  v.  Wilson,  60  Ind.  64 ; 
Netvhoiise  v.  Clark,  60  Ind.  172 ;  Indianapolis,  etc.,  R.  W.  Co. 
V.  Goar,  62  Ind.  411 ;  Miller  v.  Porter,  71  Ind.  521 ;  Ohio,  etc., 
R.  W.  Co.  V.  Collarn,  73  Ind.  261. 

There  are  some  cases  where  the  plaintiff  has  demurred  to 
the  evidence  of  the  defendant,  aside  from  those  mentioned 
in  the  former  part  of  this  opinion,  but  in  each  of  such  cases 
the  burthen  of  the  issue  was  upon  the  defendant.  The  fol- 
lowing cases  are  among  them:  Strough  v.  Gear,  48  Ind. 
100;  Lemmon  v.  Whitman,!^  Ind.  318. 

In  none  of  them,  however,  was  the  question  here  discussed 
involved,  but  all  of  them  proceeded  upon  the  familiar  doc- 
trine that  the  evidence  of  the  party  who  joins  in  the  de- 
murrer must  determine  its  sufficiency.  Will  the  evidence  of 
the  party  who  tenders  the  demurrer  be  considered? 

In  Hart  v.  Calloway,  2  Bibb,  460,  the  defendant,  after  the 
evidence  on  both  sides  had  been  admitted,  tendered  a  de- 


292  Teial  Practice  [Chap.  9 

murrcr  embracing  the  evidence  of  both  parties,  and  the 
question  was  whether  the  plaintiff  could  be  compelled  to 
join  in  such  demurrer.  The  court,  in  speaking  of  the  nature 
of  a  demurrer  to  the  evidence,  said:  "The  demurrant,  ac- 
cording to  the  established  forjn,  alleges  that  the  matter 
shewn  in  evidence  by  his  adversary,  is  not  sufficient  in  law 
to  maintain  the  issue  on  his  part,  and  that  he,  the  demur- 
rant to  the  matters  aforesaid,  in  form  aforesaid  shewn  in 
evidence,  hath  not  any  necessity,  nor  is  he  obliged  by  the  law 
of  the  land  to  answer,  and  concludes  with  a  verification. 
*  *  *  The  party  whose  evidence  is  demurred  to,  in  the 
joinder  alleges  that  he  hath  shewn  in  evidence  to  the  jury, 
sufficient  matter  to  maintain  the  issue  joined  on  his  part, 
and  for  as  much  as  the  demurrant  doth  not  deny  nor  in  any 
manner  answer  the  said  matters,  prays  judgment.  Thus 
is  the  issue  joined  between  the  parties,  upon  the  question 
whether  the  matters  shewn  by  the  party  whose  evidence  is 
demurred  to,  is  sufficient  in  point  of  law  to  maintain  the 
issue  on  his  part.  To  this  question  the  judgment  of  the 
court  responds,  either  in  the  affirmative,  that  the  matter 
shewn  in  evidence  by  him  is  sufficient,  or  in  the  negative 
that  it  is  not  sufficient." 

In  Woodgate's  Aclm'r  v.  Threlkeld,  3  Bibb.  527,  the  court 
upon  a  similar  demurrer,  said:  "The  defendant  could  not 
by  demurring  cause  his  own  evidence  to  be  taken  for  true, 
and  the  court  can  not,  without  usurping  the  province  of  the 
jury,  decide  upon  its  truth.  In  principle,  it  is  not  less  ab 
surd  for  a  party  to  demur  to  his  own  evidence,  than  it  would 
be  to  demur  to  his  own  plea;  and  it  is  believed  that  there 
is  no  precedent  to  be  found  in  the  English  books  for  the 
former,  no  more  than  there  is  for  the  latter  practice." 

In  Fowle  v.  The  Common  Council  of  Alexandria,  11 
\Vlioat.  320,  the  court,  upon  a  similar  demurrer,  where  the 
f'vidence  was  circumstantial,  said:  "Even  if  the  demurrer 
could  be  considered  as  being  exclusively  taken  to  the  plaint- 
iff's evidence,  it  ought  not  to  have  been  allowed  without 
a  distinct  admission  of  the  facts  which  that  evidence  con- 
duced to  prove;  })ut  where  the  demurrer  was  so  framed  as 
to  h't  in  tlif  defendants'  evidence,  and  thus  to  rebut  what 
the  otiier  .side  aimed  to  estalilish,  and  to  overthrow  the  pre- 
sumptions arising  tlierefrom,  by  counter  presumptions,  it 
was  the  duty  of  tlie  circuit  court  to  overrule  the  demurrer, 


Chap.  9]  Demueeer  to  the  Evidence.  293 

as  incorrect,  and  untenable  in  principle.  The  question 
referred  by  it  to  the  court,  was  not  a  question  of  law,  but 
of  fact." 

These  cases  abundantly  show  that  the  evidence  of  the 
demurrant  will  not  be  considered  upon  the  demurrer,  and, 
in  the  absence  of  authorities,  it  would  seem  impossible  to 
reach  any  other  conclusion.  The  demurrant  attacks  the 
evidence  of  his  adversary,  and,  in  the  very  nature  of  things, 
this  attack  can  not  be  aided  by  his  own  evidence.  The  suf- 
ficiency of  the  adversary's  evidence  to  support  the  issue 
upon  his  part  is  the  only  question  presented  by  the  demur- 
rer, and  this  question  must  be  determined  without  reference 
to  the  evidence  of  the  demurring  party;  indeed,  such  party 
does  not  and  can  not  have  any  evidence.  The  evidence  of 
the  adversary  is  alone  involved  in  the  issue  raised  by  the 
demurrer.  The  cases  of  Thomas  v.  Ruddell,  66  Ind.  326, 
and  Baker  v.  Baker,  69  Ind.  399,  so  far  as  they  are  inconsist- 
ent with  this  opinion,  should  be  overruled. 

As  the  evidence  of  the  demurring  party  is  not  to  be  con- 
sidered, the  case  stands  precisely  as  though  no  evidence 
was  offered  by  the  appellees;  and,  as  the  burthen  of  the 
issue  was  upon  them,  the  demurrer  should  have  been  over- 
ruled, and  judgment  rendered  for  the  appellant.  Fouch  v. 
Wilson,  60  Ind.  64. 

For  these  reasons,  the  judgment  should  be  reversed. 


BENNETT  V.  PERKINS. 

Supreme  Court  of  Appeals  of  West  Virginia.    1900. 

47  West  Virginia,  425. 
McWhorter,  President : 

''Fourth.  It  was  error  for  the  court  to  require  defend- 
ant to  join  in  plaintiff's  demurrer  to  the  evidence,"  as  set 
out  in  the  bill  of  exceptions  No.  4;  and,  fifth,  "It  was  error 
to  render  judgment,  on  the  demurrer  to  the  evidence,  for 
plaintiff."    The  contract  sued  upon  here  was  for  the  pay- 


294  Trial  Practice  [Chap.  9 

ment  to  plaintiff  of  the  sum  of  three  hundred  dollars  in 
case  he  succeeded  in  relieving  or  releasing  two  certain 
tracts  of  land  from  the  lien  of  a  judgment  which  endangered 
it.  If  he  was  wholly  successful  he  was  to  be  paid  the 
three  hundred  dollars,  with  interest,  but,  in  the  event  he 
should  fail  to  release  both  of  said  tracts  from  said  lien,  and 
should  relieve  from  liability  the  one  tract  on  which  said 
defendant  then  lived,  then  he  was  to  be  paid  the  one-half 
of  said  sum.  The  burden  of  proof  was  upon  the  plaintiff 
to  show  to  the  satisfaction  of  the  jury  that  he  had  per- 
formed his  part  of  the  contract,  and  was  entitled  to  re- 
cover the  three  hundred  dollars,  or  the  one-half  thereof, 
as  the  case  might  be.  Counsel  for  plaintiff  contend  that 
either  party  may  demur  to  the  evidence,  and  cite  Insurance 
Co.  V.  Wilson,  29  W.  Va.  528,  (2  S.  E.  888) ;  Shmv  v.  County 
Court,  30  W.  Va.  488,  (4  S.  E.  439),  and  Arnold  v.  Bunnell, 
42  W.  Va.  479,  (26  S.  E.  359)  in  support  of  their  con- 
tention, and  this  is  true,  with  certain  restrictions.  6  Enc, 
PL  &  Prac.  440,  says:  "Either  party  has  a  right  to 
demur  to  the  evidence,  but  the  demurrer  is  only  applicable 
to  the  evidence  of  the  party  holding  the  affirmative  of  the 
issue."  In  Pickel  v.  Isgrigg,  (C.  C.)  6  Fed.  676,  it  is  held: 
"The  evidence  of  a  party  upon  the  affirmative  side  of  an 
issue  of  fact  before  a  jury  may  be  demurred  to  by  the 
adverse  party  under  certain  conditions ;  but  the  party  upon 
whom  the  l)urden  of  proof  of  the  issue  rests  is  not  per- 
mitted to  demur  to  the  evidence  of  the  other  party,  for  he 
cannot  be  allowed  to  assume  that  he  has  made  out  his 
case."  So,  in  Styles  v.  Inman,  55  Miss.  469,  (Syl.,  point 
8):  "A  demurrer  may 'be  taken  to  the  evidence  of  either 
party,  plaintiff  or  defendant,  liolding  the  affirmative  of 
the  issue."  While  it  has  not  been  held,  in  so  many  words, 
by  this  Court,  that  the  evidence  of  the  party  not  having 
the  burden  of  proof  cannot  be  demurred  to,  yet  it  has  so 
lield  by  implication.  In  Bank  v.  Evans,  9  W.  Va.  373,  (Syl., 
point  7):  "The  defendant  ought  to  be  compelled  to  join 
in  a  demurrer  to  evidence  when  the  burden  of  proof  is  upon 
liiiM,  uiih'ss  the  case  is  clearly  against  the  plaintiff,  or  the 
court  (l(jul)ts  what  facts  should  be  reasonably  inferred  from 
the  evidence."  What  is  the  plain  inference  here  but  that, 
if  the  burden  of  proof  is  not  upon  the  defendant,  he  should 
not  be  recpiired  to  join  in  the  demurrer.     To  a  jury  of  his 


Chap.  9]  Demubree  to  the  Evidence.  295 

peers  the  defendant  as  well  as  the  plaintiff  has  a  right, 
under  the  Constitution  of  the  United  States,  and  of  this 
State,  to  submit  all  questions  of  fact  in  issue  in  actions 
at  law.  Article  VII.  of  the  former  instrument  provides 
that:  "In  suits  at  common  law,  when  the  value  in  contro- 
versy shall  exceed  twenty  dollars,  the  right  of  trial  by 
jury  shall  be  preserved,  and  no  fact  tried  by  a  jury  shall 
be  otherwise  re-examined  in  any  court  of  the  United  States 
than  according  to  the  rules  of  the  common  law;"  and  our 
State  Constitution  (Article  III.,  §  13)  makes  the  same  pro- 
vision; and,  when  a  defendant  submits  his  facts  in  evidence 
before  a  jury  impaneled  to  try  the  issue  made  in  the  case, 
and  the  same  tend  in  any  degree,  however  slight,  to  contra- 
dict plaintiff's  evidence,  or  to  prove  failure  on  the  part 
of  plaintiff  to  comply  with  his  contract,  the  riglit  to  have 
such  evidence  weighed  and  considered  by  the  jury  is  guar- 
anteed to  him,  and  he  cannot  be  deprived  of  this  right  by 
the  court  withdrawing  the  case  from  the  jury,  the  consti- 
tuted triors  of  the  issues  of  fact,  and  itself  weigh  the  evi- 
dence, and  decide  which  party  succeeds  on  the  issue.  If 
either  party  has  an  absolute  right,  whether  the  onus  pro- 
handi  was  upon  him  or  not,  to  demur  to  the  evidence,  and 
force  his  adversary  to  join  therein,  then  the  right  of  trial 
by  jury  is  at  an  end,  and  that  which  has  ever  been  held  by 
the  American  people  as  one  of  their  most  sacred  rights,  is 
a  myth.  The  rule  is  that  he  who  affirms  a  proposition 
must  maintain  it  with  sufficient  evidence.  *  *  *  rj'jjg 
fifth  assignment — that  it  was  error  to  render  judgment  for 
the  plaintiff  on  the  demurrer  to  the  evidence — is,  there- 
fore, well  taken. 

It  follows  that  the  judgment  and  the  verdict  of  the  jury 
should  have  been  set  aside,  and  the  plaintiff's  action  dis- 
missed. 

Reversed. 


296  Tkial  Pbactice  [Chap.  9 

HOPKINS  V.  RAILROAD. 

Supreme  Court  of  Tennessee.    1895. 

96  Tennessee,  409. 

McAltstee,  J. — The  only  question  presented  for  determi- 
nation upon  the  record  is  whether  the  practice  of  demurring 
to  the  evidence  is  sanctioned  by  the  Constitution  and  laws 
of  this  State.  The  suit  was  brought  by  W.  D.  Hopkins,  Ad- 
ministrator, to  recover  damages  for  the  unlawful  killing 
of  his  son,  W.  0.  Hopkins. 

The  plaintiff's  intestate,  at  the  time  of  his  death,  was 
employed  by  the  railroad  company  in  the  capacity  of  fire- 
man upon  a  locomotive.  The  gravamen  of  the  action,  as 
outlined  in  the  declaration,  is  that  the  death  of  the  plain- 
tiff's intestate  was  occasioned  by  the  negligence  of  the  en- 
gineer in  charge  of  the  train.  *    *    * 

*  *  *  The  record  discloses  that  the  deceased,  in  obedience 
to  the  rules  of  the  company,  had  voluntarily  taken  his  posi- 
tion at  the  rear  brake  of  the  rear  car ;  that,  with  knowledge 
of  the  signals,  he  gave  a  danger  signal  to  the  engineer,  and 
the  latter,  in  answer  to  said  signal,  immediately  shut  off 
steam,    producing    a   jar   in    the    train    which    threw    the 
plaintiff  from  his  position    on    the    car    violently    to    the 
ground.     This  was  the  proximate  cause  of  the  accident. 
*  *  *So  that,  in  any  view  of  the  case,  upon  the  plaintiff's 
own  showing,  no  liability  was  made  out  against  the  com- 
pany.    It  a]ipears  from  the  record  that  at  the  conclusion 
of  the  plaintiff's  testimony  before  the  jury,  council  for  de- 
fendant company  interposed   a  written  demurrer  to   the 
evidence,  as  follows,  towit :  ' '  The  defendant  comes  and  de- 
murs to  the  evidence  of  plaintiff,  and  offers  to  admit  of  rec- 
ord that  the  following  testimony  and  proof  introduced  by 
tlie  ])laintiff  (setting  out  all  the  testimony  introduced  by 
plaintiff)  is  true,  and  further  admits  as  true  all  proper  and 
l«'gal  deductions  and  inferences  therefrom  in  law.    The  de- 
fendant offers  to  admit,  that  the  facts  so  stated  are  the 
facts  in  the  case,  and  were  proven  entirely  by  plaintiff  and 
his  witnesses,  and  does  now  aver  that  the  facts  so  stated 
present  no  ground   for  a  recovery  against  it  under  the 
pleadings   in   this  cause,  and  this  it  is  ready  to  verify. 


Chap.  9]  Demueker  to  the  Evidence.  297 

Wherefore,  defendant  prays  the  Court  to  allow  this  de- 
murrer, and  direct  plaintiff  to  join  therein;  and  judgment 
of  the  Court  accordingly ;  and  that  plaintiff  may  be  barred 
against  having  or  maintaining  his  action  against  it,  or 
further  prosecuting  the  same. 

"East  &  Fogg, 
*'C.  D.  Porter, 
"J.  D.  B.  DeBow, 
"Attorneys." 

It  will  be  observed  that  the  demurrer  in  this  cause  was 
in  writing,  and  set  out  in  full  the  plaintiff's  evidence,  which 
is  in  accordance  with  the  established  practice  in  such 
cases. 

Counsel  for  plaintiff  moved  to  dismiss  the  demurrer,  be- 
cause unknown  to  the  forms  or  practice  of  the  law,  and  be- 
cause insufficient,  which  motion  was  by  the  Court  overruled. 
Thereupon,  plaintiff  joined  issue  upon  the  demurrer.  Up- 
on argument  of  counsel  and  consideration  by  the  Court  the 
demurrer  was  sustained,  and  the  suit  dismissed.  Plaintiff 
appealed,  and  has  assigned  errors. 

The  first  assignment  is  that  the  trial  Judge  erred  in  al- 
lowing defendant  to  file  a  demurrer  to  the  evidence,  sus- 
taining the  same,  and  dismissing  the  suit.  It  is  insisted 
this  action  of  the  Court  violates  Article  1,  Section  6  of  the 
Constitution  of  the  State,  which  provides  that  the  right 
of  trial  by  jury  shall  remain  inviolate,  etc. ;  and  also  Arti- 
cle 6,  Section  9,  which  ordains:  "Judges  shall  not  charge 
juries  witli  respect  to  matters  of  fact,  but  may  state  the 
testimony  and  declare  the  law."  It  may  be  well  to  under- 
stand at  the  threshold  of  this  investigation  what  is  meant 
by  the  right  of  trial  by  jury  as  guaranteed  by  the  Consti- 
tution. The  late  Mr.  Justice  Miller,  in  his  lectures  on  Con- 
stitutional Law,  quotes,  with  approval,  the  following  from 
the  Encyclopedia  Britannica,  in  its  article  "Jury,"  to-wit: 
"The  essential  features  of  trial  by  jury,  as  practiced  in 
England  and  countries  influenced  by  English  ideas,  are  the 
following :  The  jury  are  a  body  of  laymen,  selected  by  lot, 
to  ascertain,  under  the  guidance  of  a  Judge,  the  truth  in 
questions  of  fact,  arising  either  in  a  civil  litigation  or  a 
criminal  process.  *  *  *  Their  province  is  strictly  limited 
to  questions  of  fact,  and,  within  that  province,  they  are 
still  further  restricted  to  the  exclusive  consideration  of 


298  Trial  Practice  [Cliap   0 

matters  tliat  liavo  been  proved  by  evidence  in  the  course  of 
the  trial.  They  must  submit  to  the  direction  of  the  Judge 
as  to  any  rule  or  principal  of  law  that  may  be  applicable 
to  the  case,"  etc. 

Again,  Forsyth,  in  his  History  of  Trial  by  Jury,  pub- 
lished in  1852,  says:  *'The  distinctive  characteristic  of 
the  system  is  this,  that  the  jury  consists  of  a  body  of  men 
taken  from  the  community  at  large,  summoned  to  find  the 
truth  of  disputed  facts.  They  are  to  decide  upon  the  effect 
of  the  evidence,  and  thus  to  assist  the  Court  to  pronounce  a 
right  judgment,  but  they  have  nothing  to  do  with  the  judg- 
ment or  sentence  which  follows  the  verdict.  They  are  not, 
like  the  Judges,  members  of  a  class  charged  with  the  duty 
of  judicial  inquiry;  they  are  taken  from  varied  pursuits 
to  make  a  special  inquiry,  and  return  to  their  ordinary 
avocations  when  this  labor  is  over." 

It  will  be  observed  that  in  both  of  these  definitions  the 
distinctive  feature  of  the  jury  system  is,  that  it  is  a  trib- 
unal erected  for  the  settlement  of  variant,  contested,  and 
disputed  facts.  If  the  facts  upon  which  the  plaintiff  re- 
lies are  uncontroverted  and  are  expressly  admitted  by  the 
defendant,  together  with  all  legal  and  reasonable  infer- 
ences that  may  be  deduced. therefrom,  it  is  difficult  to  per- 
ceive what  function  is  to  be  performed  by  the  jury  in  the 
settlement  of  such  agreed  facts.  The  province  of  the  jury 
is  to  weigh  the  evidence,  but  when  there  is  no  disputed 
facts  in  the  record,  there  is  nothing  to  be  weighed.  It  was 
upon  this  idea  that  the  demurrer  to  the  evidence  became  an 
established  practice  at  common  law. 

"It  is  defined  by  the  best  text  writers  to  be  a  proceeding 
by  which  the  Court  in  which  the  action  is  depending  is 
called  upon  to  decide  what  the  law  is  upon  the  facts  shown 
in  evidence,  and  it  is  regarded,  in  general,  as  analogous  to 
a  demurrer  upon  the  facts  alleged  in  the  pleading.  When 
a  party  wishes  to  withdraw  from  the  jury  the  application 
of  tlie  law  to  the  facts,  he  may,  by  the  consent  of  the  Court, 
demur  in  law  upon  the  evidence,  the  effect  of  which  is  to 
tak(!  from  the  jury  and  refer  to  the  Court  the  application 
of  tlie  law  to  the  facts;  and  thus  the  evidence  is  made  a 
j)art  of  the  record,  and  is  considered  by  the  Court  as  in  the 
rase  of  a  special  verdict."  Siujdam  v.  Williamson,  20  How. 
4U7 ;  Van^tone  v.  Siillwell  Mfg.  Co.,  142  U.  S.  134. 


Chap.  9]  Demuerer  to  the  Evidence.  299 


''The  demurrer  not  only  admits  the  truth  of  all  the  evi- 
dence adduced  by  the  party  against  whose  evidence  the  de- 
murrer is  directed,  but  it  also  admits  all  the  inferences  that 
may  be  logically  and  reasonably  drawn  from  the  evidence. 
The  probative  force  of  the  evidence  is  not  confined  to  the 
direct  effect  of  the  evidence,  but  extends  to  the  results  rea- 
sonably deducible  from  it  by  logical  and  legitimate  infer- 
ence. *  *  *  i^  follows,  therefore,  that  the  facts  which 
the  evidence,  directly  or  indirectly,  tends  to  prove  must 
be  taken  as  admitted."    Elliott's  General  Practice,  Vol.  2, 

Sec.  858. 

********** 

We  have  seen  from  the  authorities  that  the  only  province 
of  the  jury  is  to  settle  disputed  questions  of  fact,  while  the 
office  of  the  demurrer  to  the  evidence  is  to  admit  the  facts 
and  invoke  the  application  of  the  law  by  the  Court.  Is  this 
practice  in  any  sense  an  invasion  of  the  constitutional  guar- 
anty ''that  the  right  of  trial  by  jury  shall  remain  inviolate," 
or  is  it  subversive  of  the  other  provision  "that  judges  shall 
not  charge  juries  with  respect  to  matters  of  fact,  but  may 
state  the  testimony  and  declare  the  law?"  We  do  not  so 
understand  it.  It  is  not  so  understood  in  other  States  of 
'he  Union  with  similar  constitutional  provisions. 

Says  Mr.  Elliott :  "In  some  jurisdictions,"  citing  Maine, 
"the  Courts  refuse  to  recognize  the  practice  of  demurring 
to  the  evidence  but,  as  we  think,  without  reason,  for  the 
practice  is  an  ancient  and  well  established  one,  having  a 
firm  support  in  principle.  It  is  recognized  in  most  of  the 
States,  and  also  by  the  Federal  and  English  Courts."  Vol. 
2,  Sec.  855. 

"It  is  illogical,"  says  the  same  author,  "to  assert  that 
that  there  is  any  encroachment  upon  the  province  of  the 
jury  where  the  evidence  is  conceded  to  be  true,  and  all  legit- 
imate and  reasonable  inferences  that  may  be  drawn  from 
it  are  admitted,  for  in  such  a  case  there  is  no  disputed 
question  for  the  jury  to  decide.  Nor  is  there  any  injustice 
in  entertaining  a  demurrer,  for,  if  the  law  is  against  the 
party  to  whose  evidence  the  demurrer  is  addressed  upon 
the  evidence  and  the  legitimate  inferences  that  may  be 
drawn  from  it,  he  can  by  no  possibility  be  rightfully  en- 
titled to  a  recovery,  and  it  is  the  duty  of  the  Court  to  so 


300  Tkial  Peactice  [Chap.  9 

adjudge."    Elliott's  General  Practice,  Vol.  2,  Sec.  858. 

It  will  thus  be  seen  from  this  review  that  the  demurrer 
to  the  evidence  is  still  preserved  in  seventeen  of  the  States. 
The  practice  has  not  been  repudiated  in  the  other  States 
as  obnoxious  to  their  Constitutions,  but  it  has  been  super- 
seded by  a  less  cumbersome  and  more  radical  procedure, 
to- wit,  ordering-  n  -"^n'^nit  and  <lirecting  a  verdict. 

*  *  *  It  will  be  preceived,  moreover,  that  in  every 
State  of  the  Union  the  Judge  is  allowed  to  withdraw  a  case 
from  the  jury  whenever  there  is  a  destitution  of  any  com- 
petent, relevant,  and  material  evidence  to  support  the  issue, 
and  this  authority  is  exercised,  either  by  directing  a  ver- 
dict, sustaining  a  demurrer  to  the  evidence  or  enforcing 
a  compulsory  nonsuit,  as  the  practice  may  prevail  in  the 
particular  State.  This  fact  is  incontestable,  and  is  abund- 
antly shown  in  the  overflow  of  cases  already  cited. 

But  it  is  argued  by  counsel  for  plaintiff  in  error  that, 
whatever  may  be  the  practice  in  other  States  of  the  Union, 
the  adjudications  of  this  Court  are  against  either  form  of 
practice,  and  necessarily  so,  since  the  Constitution  of  Ten- 
nessee not  only  secures  the  right  of  trial  by  jury,  but  fur- 
ther declares  that  "Judges  shall  not  charge  juries  with  re- 
spect to  matters  of  fact,  but  may  state  the  testimony  and 
declare  the  law."  As  already  seen,  the  first  clause  in  re- 
spect of  the  trial  by  jury,  is  found  in  the  Constitution  of  all 
the  States  in  one  form  or  another,  but  the  latter  clause  is 
found  in  the  organic  law  of  only  five  States.  We  do  not 
think  the  latter  clause  adds  anything  to  the  prohibition  con- 
tained in  the  first  clause. 

It  will  be  found  that  the  practice  in  the  five  States  whose 
Constitutions  embody  this  additional  clause  sanctions  eith- 
er the  compulsory  nonsuit  or  the  right  of  the  Judge  to 
direct  a  verdict,  in  either  case  confessedly  a  more  radi- 
cal procedure  than  the  demurrer  to  the  evidence. 

We  hold  that  an  ai)iJropriate  form  for  determining 
wlieth(!r,  as  a  matter  of  law,  any  recovery  can  be  had,  or 
liability  fixed,  against  the  defendant  upon  facts  which  are 
not  disputed  la  by  demurring  to  the  evidence.     This  form 


Chap.  9]  Demuerer  to  the  Evidence.  301 

of  practice  is  expressly  sanctioned  by  an  adjudication  of 
this  Court  which  has  never  been  overruled,  though  it  may 
be  conceded  that  the  practice  is  cumbersome  and  antiquated. 
In  the  nature  of  things,  it  can  seldom  be  successfully  in- 
voked, for  the  reason  that  if,  upon  any  rational  or  legiti- 
mate view  of  the  evidence,  a  prima  facie  case  is  made  out, 
"or  if  the  testimony  be  doubtful,  or  the  trend  of  facts  con- 
tradictory in  themselves,  or  admit  of  different  interpreta- 
tion by  fair-minded  men,"  the  case  must  be  submitted  to 
the  jury.  Moreover,  the  practice  is  attended  with  the  dan- 
ger that,  if  unsuccessful,  the  prevailing  party  is  entitled  to 
final  judgment  and  an  immediate  assessment  of  his  dam- 
ages.   Elliott's  General  Practice,  Vol.  2,  Sees.  865-870. 

In  the  present  record  we  are  confronted  with  a  perfectly 
jDlain  case,  in  which  no  liability  is  established  against  the 
defendant  upon  the  facts,  or  upon  any  reasonable  or  legiti- 
mate inference  that  may  be  made  upon  such  facts.  The 
law  of  every  case,  in  whatever  form  presented,  belongs  to 
the  Court.  It  is  not  only  the  prerogative  of  the  Judge,  but 
a  solemn  duty  to  declare  it. 

The  defendant  in  this  case  is  entitled  to  the  judgment  of 
the  law,  upon  the  undisputed  facts  found  in  the  record. 
Our  duty  is  imperative,  and,  being  of  opinion  that  in  no 
\'iew  of  the  facts  shown  in  evidence  is  any  liability  made 
out  against  the  defendant  company,  we  affirm  the  judgment 
of  the  Circuit  Court. 


CHAPTER  X. 
DISMISSAL,   NON-SUIT   AND   DIRECTED   VERDICT. 

Section  1.    Dismissal. 

(a)     Circumstances  under  which  Plaintiff  may  Dismiss. 

BERTSCHY  V.  McLEOD. 

Supreme  Court  of  Wisconsin.    1873, 

32  Wisconsin,  205. 

Appeal  from  the  County  Court  of  Milwaukee  County. 

This  action  was  brought  to  recover  an  alleged  unpaid 
balance  due  from  the  defendant  to  the  plaintiff  for  a  steam 
engine  and  fixtures  furnished  by  the  plaintiff  to  defendant, 
pursuant  to  a  written  agreement  between  the  parties,  a  copy 
of  which  is  inserted  in  the  complaint.  The  answer  contains, 
in  addition  to  certain  matters  pleaded  as  defenses,  two 
counter-claims,  one  of  which  alleges  that  the  written  agree- 
ment does  not  contain  the  contract  made  by  the  parties  and 
which  they  intended  to  include  therein,  in  that  an  important 
portion  of  such  contract  is  omitted  therefrom,  and  prays 
that  the  written  agreement  be  reformed  so  as  to  include 
the  omitted  portion;  and  the  other  counter-claim  is  for 
damages  for  the  alleged  failure  of  the  plaintiff  to  perform 
sucli  contract  on  his  part,  on  account  of  which  the  defend- 
ant demands  judgment  against  the  plaintiff  for  a  sum  ex- 
ceeding the  demand  of  the  plaintiff. 

Tlic  ])laintiff  replied  to  such  counter-claims,  in  effect  deny- 
ing tlie  material  allegations  thereof.  After  issue  was  thus 
joined  in  the  action,  the  attorney  for  the  plaintiff  entered 
a  sidebar  rule,  or  order  of  course,  with  the  clerk  of  the 
court,  discontinuing  the  action  on  payment  of  the  defend- 
ant's taxable  costs  therein.  lie  also,  on  the  same  day, 
served  upon  the  attorneys  for  the  defendant  notice  of  such 
proceeding,  and  an  offer  to  pay  the  defendant's  costs  upon 
presentation  of  a  taxed  bill  thereof,  and  a  further  offer 

302 


Sec.  1]      Dismissal^  Non-Suit,  Directed  Verdict  303 

to  appear  without  formal  notice  before  any  taxing  officer 
for  the  purpose  of  having  the  costs  adjusted.  The  attor- 
neys for  the  defendant  immediately  notified  the  plaintiff's 
attorney  that  they  should  disregard  the  attempted  discon- 
tinuance of  the  action,  for  the  reason  that  after  a  counter- 
claim had  been  interposed  the  action  could  only  be  discon- 
tinued by  leave  of  court;  and  they  accordingly  noticed  the 
cause  for  trial,  and  caused  it  to  be  placed  on  the  calendar 
for  trial  at  the  next  term  of  the  court. 

Thereupon  a  motion  was  made  on  behalf  of  the  plaintiff, 
to  strike  the  cause  from  the  calendar,  on  the  ground  that  the 
same  had  been  discontinued.  The  court  denied  the  motion, 
holding  that  the  cause  had  not  been  legally  discontinued, 
but  was  still  pending.  This  ajDpeal  is  from  the  order  deny- 
ing such  motion. 

********** 

Lyon,  J. 

The  following  propositions  must,  we  think,  be  conceded : 
1st.  At  the  common  law,  a  plaintiff  had  the  absolute  right 
to  discontinue  his  action  before  or  after  issue  joined,  and 
without  leave  of  court,  2nd.  In  suits  in  equity,  under  the 
former  practice,  the  plaintiff  might,  in  like  manner,  dis- 
miss his  bill,  but  such  dismissal  did  not  carry  with  it  a 
cross  bill  interposed  by  the  defendant.  2  Barb.  Ch.  Pr.,  128 
and  cases  cited.  3d.  The  right  of  discontinuance  is  not 
effected  by  the  code,  but  remains  the  same,  both  in  legal 
and  equitable  actions,  as  under  the  former  practice. 

By  the  common  law,  neither  of  the  counterclaims  here 
interposed  could  be  pleaded  in  the  action.  The  one  which 
demands  a  reformation  of  the  written  agreement  could  only 
be  made  available  by  a  suit  in  equity;  and  the  other,  which 
demands  judgment  for  damages  for  the  alleged  violation 
of  his  contract  by  the  plaintiff,  in  excess  of  the  plaintiff's 
demand,  could  only  be  enforced  by  a  separate  action.  Of 
course,  the  subject  matter  of  the  latter  counter-claim  might 
be  pleaded  as  a  defense  to  the  action,  either  in  whole  or  in 
part;  but  the  defendant  could  not  in  that  case  recover  judg- 
ment for  any  excess  of  damages  eustained  by  him,  over  and 
above  the  damages  sustained  by  tiie  plaintiff.  In  brief,  at 
the  common  law  the  defendant  could  only  plead  such  matter 
in  defense,  and  could  not  obtain  in  the  action  equitable  re- 
lief, or  recover  a  judgment  for  damages  against  the  plain- 


304  Trial  Practice  [Chap.  10 

tiff,  as  he  now  may  under  proper  pleadings  and  proofs. 
Waterman  on  Set-Off,  Recoupment,  etc.,  471;  1  Chitty's 
PL,  569;  2  Black.  Com.  (Cooley's  ed.),  305,  note  19.  Hence, 
all  there  was  of  the  action  at  the  common  law  was  the 
cause  of  action  as  stated  in  the  declaration,  and  the  defense 
pleaded  thereto  by  the  defendant;  and  that  was  all  which 
the  plaintiff  had  an  absolute  right  to  discontinue.  Such 
right  of  discontinuance  still  remains  under  the  present 
practice,  and,  to  the  extent  above  indicated,  has  been  right- 
fully exercised  in  this  case  by  the  plaintiff.  The  plaintiff's 
cause  of  action,  and  all  defenses  pleaded  thereto  which 
could  have  been  pleaded  as  such  under  the  former  practice, 
have  disappeared  from  the  cause  by  force  of  the  order  of 
discontinuance. 

But  we  are  unable  to  perceive  how  it  can  be  held,  upon 
any  logical  principle,  that  such  discontinuance  necessarily 
carried  with  it  those  proceedings  of  the  defendant  which 
the  code  permits  him  to  institute  in  the  action,  or  rather  to 
engraft  upon  it,  but  which  are,  in  substance  and  effect,  ac- 
tions brought  by  the  defendant  against  the  plaintiff.  Had 
these  proceedings  been  under  the  common  law  practice,  as 
already  observed,  the  counter-claims  interposed  in  this  ac- 
tion would  have  been  asserted  in  two  separate  and  distinct 
actions,  one  at  law  and  the  other  in  equity,  in  both  of  which 
the  position  of  the  parties  would  be  the  reverse  of  their 
position  in  the  present  action.  In  such  case,  surely  the  dis- 
continuance by  the  plaintiff  of  the  action  brought  by  him 
would  not  work  a  discontinuance  of  such  other  actions 
brought  against  him.  Why  should  the  plaintiff's  discontin- 
uance of  his  action  lead  to  that  result  under  the  present 
practice?  The  learned  counsel  for  the  plaintiff  have  failed 
to  answer  this  question  satisfactorily,  and  we  freely  con- 
fess our  ina))ility  to  do  so. 

The  cases  decided  by  the  various  courts  of  New  York 
upon  the  sul),jer't  of  the  right  of  discontinuance  under  the 
cod(!  are  conflicting,  and  quite  unsatisfactory;  and  we  can 
get  but  little  aid  from  them  in  determining  the  question  un- 
der consideration. 

It  may  be  stated,  in  sui)port  of  the  views  above  expressed, 
that  this  right  or  practice  of  counter-claim  is  borrowed  from 
the  civil  law,  where  it  is  designated  ''demand  in  reconven- 
tion;" and  the  Louisiana  cases  referred  to  by  the  learned 


Sec.  1]       Dismissal,  Non-Suit,  Dikected  Verdict  305 

counsel  for  the  defendant  clearly  show  that,  by  the  rules  of 
the  civil  law,  a  discontinuance  of  the  action  by  the  plaintiff 
is  ineffectual  to  put  a  defendant  out  of  court  who  has  inter- 
posed a  ''demand  in  reconvention." 

If  the  foregoing  views  are  correct,  it  necessarily  follows 
that  the  discontinuance  of  his  action  by  the  plaintiff  left 
the  issues  made  by  the  counter-claims  and  the  reply  there- 
to, pending  in  court  and  for  trial,  and  that  the  court  ruled 
correctly  in  refusing  to  strike  the  cause  from  the  calendar. 
If  application  be  made  for  that  purpose,  the  county  court 
should,  under  the  special  circumstances  of  the  case,  permit 
the  plaintiff  to  vacate  the  order  of  discontinuance  so  en- 
tered by  him,  to  the  end  that  the  whole  controversy  between 

the  parties  may  be  adjudicated  in  this  action. 

********** 

By  the  Court. — The  order  appealed  from  is  affirmed. 


CARLETON  V.  DARCY. 

Court  of  Appeals  of  Neiu  York.     1878. 

75  New  York,  375. 

FOLGEE,   J. 

The  plaintiff  has  seen  fit  to  ask  the  court  below  for  an 
order  permitting  him  to  discontinue  his  action,  on  the  pay 
ment  of  costs  to  the  defendants.  That  court  has  refused 
his  request,  and  on  appeal  from  the  order  he  claims  that  he 
has  the  right,  of  his  own  head,  to  discontinue  his  action  on 
those  terms.  But  there  is  no  valid  discontinuance  of  an 
action  without  an  order  to  that  end.  That  order,  whether 
ex  parte  or  on  motion,  must  be  an  order  of  the  court,  and 
as  its  order,  within  its  control.  It  is  true,  as  a  general  rule, 
that  a  plaintiff  may,  upon  the  payment  of  the  costs  of  th(^ 
defendant,  enter  an  order  of  discontinuance  of  the  action, 
and  give  notice  thereof,  and  that  the  cause  will  be  there- 
by discontinued.  Yet  the  court  has  always  kept  and  exer- 
cised the  right  to  control  such  an  order,  as  well  as  any 
other  order  put  upon  its  records.  And  where  circum- 
stances have  existed  which  have  made  it  inequitable  that 
T.  p.— 20 


306  Trial  Pkacticb  [Chap.  10 

the  plaintiff  should,  of  his  own  head  and  without  terms, 
discontinue  his  action,  they  have  refused  his  motion  to  do  so 
altogether,  or  except  on  terms;  or  when  he  has  entered  an 
order  ex  parte,  have  opened  it,  and  made  it  conform  to 
what  was  proper  under  the  circumstances.  Thus  the  or- 
der has  been  refused  where  a  counter-claim  had  been  set 
up,  against  which  the  statute  of  limitations  would  be  a  bar, 
if  the  suit  was  discontinued;  {Van  Alen  v.  Schermerhorn, 
14  How.  287) ;  or  where  the  defendants  had  been  examined 
as  witnesses,  unless  the  plaintiff  would  stipulate  that  the 
examination  might  be  used  in  evidence  in  any  action  to  be 
subsequently  brought:  Cockle  v.  Underwood,  3  Duer,  676; 
see,  also,  Cooke  v.  Beach,  25  How.  356. 

So  that  the  court,  to  which  the  motion  for  leave  to  dis- 
continue was  addressed,  had  a  discretion,  under  all  the 
circumstances  of  the  case,  whether  or  not  to  refuse  it. 

We  do  not  think  that  it  abused  that  discretion.  The 
plaintiff  had  pursued  his  action  of  ejectment  against  a 
tenant,  until  the  landlord  had  interposed  and  been  made 
a  defendant  so  that  he  might  protect  his  own  rights  in  the 
premises;  the  plaintiff  had  recovered  judgment  in  his  ac- 
tion of  ejectment,  and  had  been  put  in  possession  of  the 
lands;  the  defendant  had  paid  the  costs  and  taken  a  new 
trial  under  the  statute;  and  then  the  plaintiff,  still  in  pos- 
session, asks  leave  of  discontinue  his  action.  He  got  the 
fruit  of  his  action,  the  whole  fruit  of  it,  the  possession  of 
the  premises.  By  a  discontinuance  of  his  action,  he  would 
turn  the  defendants  about  to  an  action  of  ejectment  against 
him,  and  lay  on  them  the  burden  of  showing  a  valid  title, 
sufficient  to  support  the  action  against  him.  Had  he  pre- 
ferred not  only  to  give  up  the  action,  but  the  substantial 
fruits  of  it  which  he  had  got,  and  to  put  the  defendants,  or 
either  of  them,  into  the  possession  that  he  had  taken  from 
them,  he  might  not  be  required  to  prosecute  an  action  which 
he  wislied  to  end,  and  to  further  continue  litigation.  But 
it  is  quite  different  when  he  has  got  all  that  his  action  could 
give  him,  and  has  put  the  defendants  to  the  need  of  that 
further  litigation  which  the  law  allows  them,  to  maintain 
what  they  tliink  is  tlieir  right,  for  him  then  to  discontinue 
his  action  and  throw  the  burden  of  the  affirmation  of 
anotlier  issue  upon  the  defendants.  The  court  might  well 
require  him  to  pursue  the  action  that  he  had  commenced, 


Sec.  1]      Dismissal,  Non-Suit,  Dieected  Veedict  307 

until  a  definite  and  final  result  was  reached  in  it,  settling 
positively  the  right  of  possession  of  the  lands  in  dispute. 

We  therefore  think  that  the  court  below,  in  making  the 
orders  appealed  from,  did  not  abuse  or  exceed  their  discre- 
tion. 

The  appeal  should  be  dismissed. 

All  concur. 

Appeal  dismissed.^ 

iThe  necessity  for  an  order  of  the  court  dismissing  an  action,  is  some- 
times dispensed  with  by  statute.  Luse  v.  Luse,  (1909)  144  la.  396,  122  N  W 
970.  ' 


(b)     Time  when  Plaintiff  may  Dismiss. 

CARPENTER  AND  SONS  COMPANY  V.  NEW  YORK, 

NEW  HAVEN,  AND  HARTFORD  RAILROAD 

COMPANY. 

GORHAM  MANUFACTURING  COMPANY  V.  SAME. 

Supreme  Judicial  Court  of  Massachusetts.    1903. 

184  Massachusetts,  98. 

LOEING,  J. 

It  has  always  been  a  recognized  principle  of  the  English 
law,  on  the  equity  as  well  as  on  the  common  law  side  of  the 
court,  that  a  plaintiff  is  not  bound  to  prosecute  a  suit  or 
action  to  a  finish  because  he  has  begun  it.  But  on  the  con- 
trary he  is  at  liberty  to  abandon  it  without  losing  the  right 
of  action  on  which  it  is  founded,  and  he  can  enforce  that 
riglit  subsequently  on  paying  the  costs  of  the  former  pro- 
ceeding. In  this  respect  a  plaintiff  is  more  fortunate  than 
a  defendant  who  has  a  day  in  court  to  interpose  his  defence 
if  he  would  not  have  final  judgment  given  against  him. 

What  is  not  so  clear  is  how  far  the  plaintiff's  proceeding 
(whether  it  be  a  suit  in  equity  or  an  action  on  the  common 
law  side  of  the  court)  must  have  gone  for  it  to  have  readied 
the  stage  where  this  right  of  abandonment  is  lost. 

In  England  the  plaintiff  originally  had  a  right  to  abandon 
an  action  at  law  and  become  nonsuit  at  any  time  before 


308  Teial  pEACTicE  [Chap.  10 

verdict,  if  not  before  judgment.  Derick  v.  Taylor,  171 
Mass.  444,  445.  That  it  was  before  verdict  and  not  before 
judgment  is  laid  down  in  OiitJiwaite  v.  Hudson,  7  Exch. 
380,  381;  2  Tidd's  Practice,  (3d  Am.  ed.)  867.  This  rule 
was  adopted  here  by  an  ordinance  of  the  Colony  in  1641; 
Anc.  Chart.  46;  and  in  Locke  v.  Wood,  16  Mass.  317,  it  was 
contended  by  Webster  and  Shaw  in  1820  that  that  was  the 
rule  of  practice  of  the  Commonwealth  and  that  the  plain- 
tiff had  a  right  to  become  nonsuit  at  any  time  before  judg- 
ment. But  the  court  "were  of  opinion  that  there  was  no 
such  right;  and  that,  after  a  cause  is  opened  to  the  jury, 
and  begun  to  be  proceeded  in  before  them,  the  parties  are 
entitled  to  a  verdict,  unless  the  court  should,  in  its  discre- 
tion, allow  a  nonsuit  or  discontinuance."  Since  then  it  has 
been  held  or  said  to  be  the  rule  that  a  plaintiff  can  become 
nonsuit  as  of  right  at  any  time  before  the  trial  has  begun 
but  not  afterwards.  Means  v.  Welles,  12  Met.  356,  361; 
Loivell  V.  Merrimack  Manuf.  Co.,  11  Gray,  382;  Shaiv  v. 
Boland,  15  Gray,  571;  Truro  v.  Atkins,  122  Mass.  418; 
Burhank  v.  Woodward,  124  Mass.  357;  Kempton  v.  Bur- 
gess, 136  Mass.  192;  Derick  v.  Taylor,  111  Mass.  444; 
Worcester  v.  Lakeside  Manuf.  Co.,  174  Mass.  299.  See  also 
the  previous  case  of  Haskell  v.  Whitney,  12  Mass.  47. 

The  reason  for  denying  in  this  Commonwealth  the  rule 
of  the  English  common  law  was  the  injustice  done  to  the 
defendant,  who  was  subjected  to  being  harassed  a  second 
time  on  one  and  the  same  cause  of  action  on  receiving  costs, 
which  in  this  Commonwealth  are  nominal.  In  that  respect 
the  burden  of  being  subject  to  a  second  action  is  much 
greater  here  than  in  England,  where  costs  are  substantial. 
But  the  common  law  rule  has  now  been  abolished  in  Eng- 
land. By  Order  XXVI.  of  the  Rules  of  the  Supreme  Court, 
1883,  adopted  under  the  judicature  act,  it  is  provided  that 
"the  plaintiff  may,  at  any  time  before  receipt  of  the  de- 
fendant's defence,  or  after  the  receipt  thereof  before  tak- 
ing any  other  proceeding  in  the  action  (save  any  interlocu- 
tory application),  by  notice  in  writing"  discontinue  the 
action.  Wilson's  Practice  of  the  Supreme  Court  of  Judi- 
cature, (7tli  ed.)  234. 

The  Massachusetts  rule  as  to  when  a  plaintiff  could 
])Oconi(!  nonsuit  in  a  common  law  action  was  established 
wlien  substanlially,  if  not  absolutely,  all  such  cases  were 


Sec.  1]      Dismissal,  Non-Suit,  Directed  Verdict  309 

tried  to  a  jury.  No  question  could  arise  as  to  what  the 
rule  was  when  applied  to  cases  tried  by  the  court,  as  so 
many  cases  are  now  tried  since  Sts,  1874,  c.  248,  sec.  1; 
1875,  c.  212,  sec.  1 ;  1894,  c.  357,  now  R.  L.  c.  173,  sec.  56, 
directing  all  cases  to  be  tried  by  the  court  unless  a  trial 
by  jury  is  claimed  by  one  of  the  parties.  Until  the  case  is 
opened  the  right  to  become  nonsuit  exists. 

A  question  did  arise  as  to  the  application  of  the  rule  in 
case  of  a  preliminary  trial  before  commissioners  in  case 
of  a  petition  to  recover  compensation  for  property  taken 
under  the  right  of  eminent  domain.  It  was  held  that  when 
the  hearing  before  the  commissioners  was  begun  the  right 
to  become  nonsuit  was  lost.  Worcester  v.  Lakeside  Mamif. 
Co.,  174  Mass.  299. 

The  case  as  bar  presents  the  question  whether  the  right 
is  lost  when  a  hearing  before  an  auditor  has  been  finished 
but  before  the  auditor's  report  is  filed. 

Were  the  question  now  before  us  a  question  of  first  im- 
pression depending  entirely  on  the  advantages  and  disad- 
vantages to  the  plaintiff  and  the  defendant  respectively,  it 
is  by  no  means  clear  that  it  ought  not  to  be  held  to  be  too 
late  for  a  plaintiff  to  become  nonsuit  when  an  order  had 
been  made  sending  the  case  to  an  auditor.  A  hearing  be- 
fore an  auditor  is  not  now,  as  it  was,  a  preliminary  investi- 
gation of  complicated  accounts  and  nothing  more.  The 
rule  laid  down  in  W-kitivell  v.  Willard,  1  Met.  216,  was  al- 
tered by  St.  1856,  c.  202,  now  R.  L.  c.  165,  sec.  55.  Although 
this  rule  was  altered  so  long  ago,  it  was  not  until  lately  that 
the  practice  as  to  what  cases  should  be  sent  to  an  auditor 
was  changed.  It  has  become  the  practice  now,  however, 
(owing  to  the  overcrowding  of  the  dockets),  to  send  to 
auditors  cases  involving  a  long  investigation,  no  matter 
what  the  kind  of  investigation  may  be.  The  result  is  that 
an  auditor's  hearing  is  now  a  different  thing  from  wliat  it 
was.  Not  onlv  that,  but  this  change  has  been  recognized 
by  the  Legislature.  St.  1900,  c.  418,  (R.  L.  c.  165,  sec.  59; 
c.  173,  sec.  81),  provides  that  the  court  may  set  a  day  for 
the  "trial"  before  the  auditor,  and  upon  such  order  being 
made  the  trial  shall  proceed  from  day  to  day  until  it  is 
concluded;  that  the  actual  engagement  of  counsel  in  a 
hearing  before  an  auditor  shall  be  an  excuse  in  another 


310  Teial  Practice  [Chap.  10 

cause  as  if  he  were  engaged  in  court,  and  each  party  is  re- 
quired to  proceed  before  the  auditor  at  the  time  appointed 
and  "to  produce  in  good  faith,  the  testimony  relied  upon 
by  him." 

But  in  spite  of  the  character  which  auditor's  hearings 
have  now  assumed,  it  is  still  true  that  such  hearings  result 
in  evidence  merely  and  cannot  result  in  an  adjudication; 
and  we  are  of  opinion  that  a  hearing  which  results  in  evi- 
dence and  cannot  per  se  result  in  an  adjudication  is  not  a 
trial  within  the  rule  which  has  now  been  laid  down  for  over 
eighty  years,  namely,  that  a  plaintiff  can  become  nonsuit 
at  any  time  before  the  trial  begins  and  not  afterward. 
Moreover  this  seems  to  have  been  assumed  by  the  Legis- 
lature in  this  very  statute,  St.  1900,  c.  418  (R.  L.  c.  165,  sec. 
59,  and  c.  173,  sec.  81.)  It  is  there  provided  that  if  the 
plaintiff  does  not  comply  with  the  provisions  of  the  act 
and  attend  before  the  auditor,  or  if  he  refuses  in  good  faith 
to  put  in  the  testimony  relied  on  by  him,  the  court  is  author- 
ized to  direct  him  to  become  nonsuit.  In  making  that  pro- 
vision it  is  assumed  that  the  court  has  no  power  to  enter 
judgment  for  the  defendant  at  that  stage  of  the  proceeding. 

Under  these  circumstances,  we  do  not  feel  at  liberty  to 
dispose  of  the  question  on  its  merits.  If,  under  the  prac- 
tice which  now  oJ^tains,  the  rule,  which  we  feel  we  are 
bound  by,  does  injustice  to  defendants,  the  remedy  is  with 
the  Legislature. 

Entry  of  nonsuit  to  stand. 


OPPENIIEIMER  V.  ELMORE. 

Supreme  Court  of  Iowa.    1899. 

109  Iowa,  196. 

Deemer,  J. 

The  record  discloses  that  after  the  issues  were  made  up, 
tho  jury  imp;molod  and  sworn,  and  the  plaintiff's  evidence 
adduced,  tlic  (IclViuhuit  snhrnitted  a  motion  asking  the  court 
to  direct  a  verdict  for  liiin  ;  and  tliat  after  the  court  had  in- 
dicated that  lie  would  sustain  the  motion,  but  before  any 


Sec.  1]      Dismissal,  Non-Suit,  Dieected  Verdict  311 

entry  was  made  on  the  docket  or  any  direction  in  fact  given 
to  the  jury,  the  plaintiffs  asked  the  court  to  dismiss  their 
case  without  prejudice,  which  it  refused  to  do,  but,  on  the 
contrary,  instructed  the  jury  to  return  a  verdict  for  defend- 
ant, which  was  accordingly  done,  and  a  judgment  was  there- 
after rendered  thereon.  Section  3764  of  the  Code  is  as 
follows:  *'An  action  may  be  dismissed,  and  such  dismissal 
shall  be  without  prejudice  to  a  future  action,  before  the  final 
submission  of  the  case  to  the  jury,"  What,  then,  is  the 
submission  of  a  case  to  a  jury?  That  question  seems  to  be 
answered  by  Harris  v.  Beam,  46  Iowa,  118,  wherein  it  is 
said:  "In  every  case  finally  submitted  there  must  be  some 
moment  of  time  in  which  the  condition  of  being  finally  sub- 
mitted is  assumed.  Ordinarily,  there  is  no  difficulty  in  de- 
termining whether  or  not  a  case  has  been  submitted.  If 
the  last  word  of  the  court 's  charge  to  the  jury  had  not  been 
read,  it  would  probably  be  conceded  that  no  final  submis- 
sion had  occured  but,  as  the  charge  had  been  fully  read,  it 
is  claimed  nothing  further  remained  for  court  or  counsel 
to  do,  and  that  the  case  was  finally  in  the  hands  of  the 
jury.  A  cause  is  not  finally  submitted  to  a  jury  when  the 
last  word  of  the  charge  is  read.  In  practice,  the  jury  are 
directed  by  the  court  to  retire  in  charge  of  a  sworn  officer 
to  consider  their  verdict,  or  to  enter  upon  the  consideration 
of  the  case  without  retiring.  This  direction  by  the  court  to 
the  jury,  to  enter  upon  the  consideration  of  the  case,  may  be 
fairly  regarded  as  the  moment  when  the  final  submission 
of  the  case  occurs.  An  attorney  cannot  always  tell  wheth- 
er he  can  safely  submit  his  case  to  the  jury  on  the  evidence 
introduced  until  he  hears  the  charge  of  the  court.  If,  in 
his  judgment,  the  charge  is  so  adverse  to  him  that  he  can- 
not safely  trust  his  case  in  the  hands  of  a  jury,  he  ought  at 
the  moment  to  be  permitted  to  dismiss  without  prejudice 
to  future  action."  Morrisey  v.  Railway  Co.,  80  Iowa,  314, 
is  a  case  almost  directly  in  point,  and  it  is  there  said: 
**  Plaintiff  having  produced  all  his  evidence,  and  rested,  the 
defendant  made  a  motion  to  instruct  the  jury  to  find  for  the 
defendant ;  which  being  fully  submitted,  the  court  said  that 
he  thought  the  motion  ought  to  be  sustained,  and  indicated 
that  he  would  sustain  it,  but  had  not  yet  made  the  entry  on 
the  calendar,  nor  directed  for  the  defendant."  "The  plain- 
tiff's attorney  then  asked  leave  to  dismiss,  to  which  the 


312  TrjAL  Peactice  [Chap.  10 

defendant  objected,  on  the  ground  that  the  case  had  been 
submitted  to  the  court,  which  objection  was  overruled  and 
the  case  dismissed."  This  action  of  the  court  was  assign- 
ed as  error.  In  passing  upon  this  question,  we  said:  "A 
submission  is  final  only  when  nothing  remains  to  be  done 
to  render  it  complete.  Submission  to  a  jury  is  not  final 
until  the  last  words  of  a  charge  are  read,  and  the  jury  di- 
rected to  consider  their  verdict.  Harris  v.  Beam,  46  Iowa, 
118.  There  was  no  final  submission  of  this  case  to  the  jury. 
They  had  not  received  the  charge  of  the  court,  and  as  yet 
had  no  authority  to  consider  of  or  return  a  verdict.  Ap- 
pellant contends  that,  as  the  sustaining  of  the  motion  for 
verdict  was,  in  effect,  a  final  disposal  of  the  case,  there  was 
a  final  submission  of  the  case  to  the  court  before  the  plain- 
tiff asked  leave  to  dismiss.  Surely,  the  submission  of  the 
motion  was  not  a  submission  of  the  case  to  the  court ;  for, 
whether  the  motion  was  overruled  or  sustained,  it  remained 
to  submit  the  case  to  a  jury  for  a  verdict.  There  was  no 
final  submission  of  the  case  to  the  court  or  jury."  See, 
also,  Partridge  v.  Wilsey,  8  Iowa,  459 ;  Livingston  v.  Mc 
Donald,  21  Iowa,  175;  Hays  v.  Turner,  23  Iowa,  214.  Noth- 
ing at  variance  with  the  rule  established  by  these  cases  is 
announced  in  McArflmr  v.  Scliidtz,  78  Iowa,  264.  In  that 
case  there  was  a  final  submission,  with  an  attempted  reser- 
vation of  a  right  to  dismiss  without  prejudice.  Such  prac- 
tice was  condemned,  and  the  action  of  the  trial  court  in  per- 
mitting a  dismissal  was  reversed.  Defendant's  counsel 
have  cited  a  number  of  cases  from  the  supreme  court  of 
Kansas  holding  that  the  action  of  the  trial  court  under 
such  a  statute  is  discretionary,  and  will  not  be  interfered 
with  on  appeal.  We  have  adopted  a  different  rule,  and,  as 
it  is  a  rule  of  pi'actice,  our  own  decisions  must  govern.  The 
trial  court  should  have  permitted  a  dismissal  of  the  case 
and  its  order  and  judgment  are  Reversed. 


Sec.  1]       Dismissal,  Nox-Suit,  Directed  Verdict  313 

ASHMEAD  V.  ASHMEAD. 

Supreme  Court  of  Kansas.     1880. 
23  Kansas,  262. 

Brewer,  J. 

This  was  an  action  for  divorce.  After  the  testimony  had 
been  received,  and  the  case  taken  under  advisement,  the 
plaintiff  moved  the  court  for  leave  to  dismiss  her  action 
without  prejudice.  Defendant  objected,  and  insisted  that 
judgment  be  rendered  upon  the  merits,  but  the  court  sus- 
tained the  motion,  and  permitted  the  plaintiff  to  dismiss 
without  prejudice.  Was  this  error?  We  have  not  before 
us  the  testimony  upon  which  the  court  acted  in  sustaining 
this  motion.  We  must  therefore  presume  it  sufficient,  if  the 
court  had  the  power  to  grant  such  a  motion.  It  will  be 
conceded  that  after  the  final  submission  of  the  case,  the 
plaintiff  had  no  right  to  a  dismissal  without  prejudice.  Up 
to  that  time  she  had  such  right,  and  could  exercise  it  of 
her  own  option,  without  the  consent  of  the  defendant  or 
the  permission  of  the  court.  At  that  time  her  rights  in 
that  respect  ceased.  But  has  not  the  court  the  power  in 
its  discretion  to  permit  a  plaintiff,  even  after  the  final  sub- 
mission, to  recall  that  submission  and  dismiss  without  prej- 
udice? It  would  be  both  strange  and  harsh,  if  such  power 
did  not  exist.  Oftentimes,  by  some  oversight  or  forgetful- 
ness,  the  plaintiff  omits  some  essential  portion  of  his  testi- 
mony. Is  the  court  powerless  to  afford  him  relief?  It  is 
constant  practice  to  open  a  case  for  additional  testimony. 
Even  after  a  jury  has  retired  to  consider  of  its  verdict,  the 
court  may  recall  it,  and  open  the  case  for  future  evidence. 
All  this,  it  is  true,  rests  within  the  discretion  of  the  court, 
and  is  not  a  right  of  the  party.  Here  the  court  exercised 
its  discretion,  and  we  cannot-  say  that  there  was  any  abuse 
of  such  discretion.  The  case  of  Schafer  v.  Weaver,  20  Kas. 
295,  is  in  point.  The  question  there  arose,  it  is  true,  after 
a  demurrer  to  the  evidence  had  been  sustained,  but  the 
principle  is  the  same. 

The  judgment  will  be  affirmed. 
All  the  Justices  concurring. 


314  Teial  Practice  [Chap.  10 

(c)     Effect  of  Dismissal. 

SOUTHERN  RAILWAY  COMPANY  V.  MILLER. 

Supreme  Court  of  the  United  States.    1909. 

217  United  States,  209. 

Mr.  Justice  Day  delivered  the  opinion  of  the  court. 

The  defendant  in  error,  plaintiff  below,  brought  suit  in 
the  City  Court  of  Hall  county,  Georgia,  against  the  South- 
ern Railway  Company,  a  corporation  of  Virginia,  and 
certain  individual  citizens  of  Georgia,  to  recover  damages 
for  personal  injuries  received  by  him  while  in  the  employ 
of  the  railroad  company  as  an  engineer.  A  recovery  in 
the  court  of  original  jurisdiction  was  affirmed  in  the  Court 
of  Appeals  of  Georgia  (59  S.  E.  Rep.  1115),  and  the  case 
is  brought  here  to  review  certain  Federal  questions  pre- 
sented by  the  record.  These  are,  first,  that  the  state  court 
erred  in  refusing  to  remove  the  case  to  the  United  States 
Circuit  Court  upon  the  petition  of  the  plaintiff  in  error; 
second,  as  it  appeared  that  the  case  had  once  been  removed 
to  the  Federal  court  and  was  dismissed  by  the  plaintiff, 
the  state  court  should  have  held  that  the  right  to  further 
prosecute  in  that  court  was  lost,  and  the  jurisdiction  com- 
pletely and  finally  transferred  to  the  Federal  court. 

*  *  *  There  was  no  error  in  the  refusal  to  remove  the 
case. 

A  further  objection  is  made  that  inasmuch  as  the  suit 
was  once  removed  from  the  state  court  to  the  Federal  court 
and  therein  dismissed,  there  was  no  right  to  begin  the  case 
again  in  the  state  court.  This  argument  is  predicated  upon 
tlie  statement  in  a  number  of  cases  in  this  court,  to  the 
effect  that  where  the  petition  for  removal  and  bond  has 
been  filed  the  state  court  loses  jurisdiction  of  the  case,  and 
subs('(|nent  proceedings  therein  are  void  and  of  no  effect. 
P>ut  this  is  far  from  holding  that  a  Federal  court  obtains 
jurisdiction  of  a  suit  thus  removed  in  such  wise  that  it  can 
never  again  be  brought  in  a  state  court,  although  there  has 
been  no  judgment  upon  the  merits  in  the  Federal  court, 
and  the  case  has  been  dismissed  therein  without  any  other 


Sec.  1]      Dismissal,  Non-Suit,  Directed  Veedict  315 

disposition  than  is  involved  in  a  voluntary  dismissal  witii 
the  consent  of  the  court. 

While  it  is  true  that  a  compliance  with  the  act  of  Con- 
gress entitling  the  party  to  remove  the  case  may  operate 
to  end  the  jurisdiction  of  the  state  court,  notwithstanding 
it  refuses  to  allow  such  removal,  it  by  no  means  follows  that 
the  state  court  may  not  acquire  jurisdiction  in  some  proper 
way  of  the  same  cause  of  action  after  the  case  has  been  dis- 
missed without  final  judgment  in  a  Federal  court.  By  com- 
plying with  the  removal  act  the  state  court  lost  its  jurisdic- 
tion, and  upon  the  filing  of  the  record  in  the  Federal  court 
that  court  acquired  jurisdiction.  It  thereby  had  the  au- 
thority to  hear,  determine  and  render  a  judgment  in  that 
case  to  the  exclusion  of  every  other  court.  But  where  the 
court  permitted  a  dismissal  of  the  action  by  the  plaintiff 
it  thereby  lost  the  jurisdiction  which  it  had  thus  acquired. 

We  know  of  no  principle  which  would  permit  the  Federal 
court  under  such  circumstances,  and  after  the  dismissal  of 
the  suit,  to  continue  its  jurisdiction  over  the  case  in  such 
wise  that  no  other  court  could  ever  entertain  it.  After  the 
voluntary  dismissal  in  tJie  Federal  court  the  case  was  again 
at  large,  and  the  plaintiff  was  at  liberty  to  begin  it  again  in 
any  court  of  competent  jurisdiction. 

We  find  no  error  in  the  judgment  of  the  Court  of  Appeals 
of  Georgia,  and  the  same  is  affirmed. 

Affirmed, 


FKANCISCO  V.  CHICAGO  «&  ALTON  RAILWAY 
COMPANY. 

United  States  Circuit  Court  of  Appeals,  Eighth  Cir- 
cuit.   1906. 

79  Circuit  Court  of  Appeals,  292. 

Before  Sanborn,  Hook  and  Adams,  Circuit  Judges. 

Sanborn,  Circuit  Judge. 

The  plaintiff  below  is  the  plaintiff  in  error  here.  He 
brought  an  action  against  the  defendant  to  recover  $5,000 
damages  for  the  negligent  killing  of  George  L.  Gerew.  The 


316  Teial  Peactice  [Chap.  10 

defendant  denied  its  liability.  There  was  a  trial  of  the 
issues  before  a  jury.  At  the  close  of  the  evidence  the  de- 
fendant moved  the  court  to  instruct  the  jury  that  under  the 
pleadings  and  evidence  they  must  find  a  verdict  for  the  de- 
fendant. The  court  granted  the  motion,  and  the  plaintiff 
excepted.  But  before  the  jury  were  actually  instructed  the 
})]aintiff  prayed  leave  of  the  court  to  take  an  involuntary 
nonsuit.  The  court  granted  him  permission  and  a  judg- 
ment was  rendered  accordingly.  Subsequently  the  plaintiff 
moved  the  court  to  set  aside  this  judgment  of  nonsuit  and  to 
grant  a  new  trial  of  the  action,  and  this  motion  was  denied. 
He  has  sued  out  this  writ  of  error  to  secure  a  reversal  of 
this  judgment  of  nonsuit  on  account  of  numerous  alleged  er- 
rors in  the  trial  of  the  action,  and  especially  because  the 
court  held  that  the  evidence  was  insufficient  to  sustain  his 
cause  of  action  and  that  the  defendant  was  entitled  to  a  ver- 
dict thereon. 

But  invited  error  is  irremediable.  If  the  court  erred  in 
the  rendition  of  the  judgment  of  nonsuit,  it  erred  at  the 
plaintiff's  request  and  to  the  prejudice  of  the  defendant, 
and  that  error  can  form  no  ground  for  the  reversal  of  the 
judgment  at  the  suit  of  the  plaintiff  who  procured  it.  A 
judgment  of  nonsuit  upon  the  motion  or  request  of  the  de- 
fendant and  against  the  objection  or  protest  of  the  plain- 
tiff is  reviewable  by  writ  of  error.  Central  Transp.  Co.  v. 
Pullman's  Car  Co.,  139  U.  S.  24,  29,  39,  40,  11  Sup.  Ct.  478. 
35  L.  Ed.  55;  Median  v.  Valentine,  145  U.  S.  611,  614,  618, 
12  Sup.  Ct.  972,  36  L.  Ed.  835. 

But  a  judgment  of  nonsuit  on  the  motion,  at  the  request 
or  with  the  consent  of  the  plaintiff,  is  not  reviewable  by 
writ  of  error  at  his  suit,  because  he  is  estopped  from  con- 
victing the  trial  court  of  an  error  which  he  requested  it  to 
commit.  *  *  * 

In  Parks  v.  Southern  Ry.  Co.,  143  Fed,  276,  a  case  which 
arose  in  North  Carolina,  where,  in  the  state  courts,  a  plain- 
tiff may  take  a  nonsuit  at  any  time  before  verdict,  the  de- 
f(3ndant  at  the  close  of  the  evidence  had  moved  the  court  to 
instruct  the  jury  to  return  a  verdict  in  his  favor,  and  the 
court  liad  sustained  the  motion.  Plaintiff  then  moved  for 
leave  to  tak(!  a  nonsuit.  The  court  denied  his  motion  and 
instructed  the  jury  to  return  a  verdict  for  the  defendant. 


Sec.  1]      Dismissal,  Nox-Suit,  Dieected  Verdict  317 

The  Circuit  Court  of  Appeals  held  that,  when  the  motion 
to  instruct  the  jury  for  the  defendant  was  made,  the  plain- 
tiff was  put  to  his  election  to  then  take  his  nonsuit  or  to 
submit  the  whole  case  upon  the  motion  to  instruct,  that  the 
motion  for  leave  to  take  a  nonsuit  after  the  decision  upon 
the  motion  to  instruct  came  too  late,  and  that  there  was  no 
error  in  the  subsequent  refusal  of  the  court  to  grant  the  non- 
suit. While  a  different  rule  has  been  established  in  this  cir- 
cuit in  cases  coming  from  Missouri,  in  deference  to  a  statute 
of  that  state  and  in  conformity  to  the  practice  in  its  trial 
courts  {Chicago,  M.  S  St.  P.  Rij.  Co.  v.  Metalstaff,  41  C.  C. 
k.  669,  101  Fed.  769),  the  opinion  in  the  Parks  case  con- 
tains a  statement  of  the  duty  of  courts  to  respect  the  rights 
of  defendants,  as  well  as  plaintiffs,  to  a  lawsuit,  to  make  an 
end  of  litigation  and  to  prevent  the  abuse  of  the  means  of 
administering  justice  by  the  trial  of  experiments  upon  the 
courts  with  defective  causes  of  action,  which  strongly  ap- 
peals to  our  judgment  and  presents  a  persuasive  argument 
in  support  of  the  rule  under  consideration.  Judge  Pritch- 
ard  said: 

"It  is  highly  important  that  the  court  in  the  exercise  of 
its  discretion  should  not  only  see  that  equal  and  exact  jus- 
tice is  done  between  litigants,  but  it  is  equallj'  important 
that  needless  litigation  should  be  speedily  determined,  and 
in  the  trial  of  cases  the  court  should  consider  the  rights  of 
the  defendant  as  well  as  those  of  the  plaintiff,  and,  where 
it  appears  that  all  the  evidence  which  it  is  possible  to 
obtain  has  been  offefed  and  the  case  has  been  submitted  to 
the  jury  or  to  the  court,  it  is  the  duty  of  the  court,  if  In 
its  opinion  the  evidence  is  not  sufficient  to  justify  a  verdict 
in  favor  of  the  plaintiff,  to  direct  the  jury  to  return  a  ver- 
dict in  favor  of  the  defendant.  The  courts  are  not  organ- 
ized for  the  purpose  of  permitting  the  jDlaintitf  in  an  action 
to  experiment  with  a  certain  state  of  facts  for  the  purpose 
of  ascertaining  the  opinion  of  the  court  as  to  the  law  ap- 
plicable to  the  same  and  then  permit  him  to  withdraw  from 
the  scene  of  conflict  and  state  a  new  cause  of  action  and 
mend  his  licks  in  another  direction.  Such  policy,  if  adopted, 
would  be  productive  of  much  mischief,  and  should  not  be 
tolerated." 

The  difference  between  a  judgment  upon  an  instructed 
verdict  and  a  judgment  of  nonsuit  is  that  the  former  pre 


318  Trial  Pbactice  [Chap.  10 

vents,  while  the  latter  permits,  the  maintenance  of  another 
action  for  the  same  cause.  When  the  evidence  was  closed 
in  the  suit  before  us,  each  party  had  established  rights  in 
the  trial  of  this  action.  The  plaintiff  had  the  right  to  elect 
whether  he  would  take  a  nonsuit  (section  639,  Rev.  St.  Mo. 
1899;  Chicago,  M.  S  St.  P.  Ry.  Co.  v.  Metalstaff,  41  C.  C. 
A.  669,  101  Fed.  769),  or  would  submit  the  whole  cause 
upon  the  motion  to  instruct  and  endeavor  to  secure  a  ver- 
dict in  his  favor.  The  defendant  had  a  right  to  elect 
whether  it  would  endeavor  to  obtain  a  nonsuit  or  a  verdict 
on  the  merits  in  its  favor.  It  chose  the  latter  alternative 
and  moved  the  court  for  a  directed  verdict.  This  motion 
the  plaintiff  opposed  and  submitted  the  cause  to  the  court 
for  decision.  The  court  granted  the  motion,  and  the  plain- 
tiff excepted,  lie  then  had  the  right  to  elect  whether  he 
would  take  a  nonsuit  and  bring  another  action  on  the  same 
cause,  or  would  take  a  verdict  against  himself  and  secure  a 
review  of  the  rulings  of  the  court  by  a  writ  of  error.  He 
chose  the  former  remedy.  He  moved  the  court  for  leave  to 
take  an  involuntary  nonsuit.  The  parties  then  stood  in 
this  situation:  The  defendant  asked  and  pressed  for  an 
instructed  verdict  and  thereby  necessarily  objected  to  the 
nonsuit  which  gave  the  plaintiff  an  opportunity  to  bring  an- 
other action.  The  plaintiff  prayed  for  the  nonsuit  and 
thereby  necessarily  objected  to  the  instruced  verdict  and  to 
a  judgment  whi(?h  would  prevent  his  maintenance  of  another 
action.  The  court  granted  the  request  of  the  plaintiff  and 
denied  that  of  tlie  defendant.  Plaintiff  thereby  secured  his 
right  to  maintain  his  action  for  the  same  cause,  and  the  de- 
fendant lost  the  judgment  in  its  favor  and  the  entire  bene- 
fit of  a  trial  in  which  it  had  succeeded.  The  nonsuit  was 
obtained  by  the  act  and  request  of  the  plaintiff  against  the 
motion  and  objection  of  the  defendant,  and  it  may  not  be 
successfully  challenged  by  a  writ  of  error  procured  by  the 
former. 

It  is  said  that  this  was  an  involuntary  nonsuit  because 
the  plaintiff  was  forced  to  take  it  by  the  decision  of  the 
trial  court  that  he  had  proved  no  cause  of  action,  and  that 
the  Supremo  Court  of  Missouri  has  often  so  decided  and 
has  reviewed  cases  from  the  inferior  courts  of  that  state 
uf)ori  writs  of  error  to  such  judgments.  Williams  v.  Finks, 
156  Mo.  597,  57  S.  W.  732;  Ready  v.  Smith,  141  Mo.  305,  42 


Sec.  1]      Dismissal,  Non-Suit,  Dieected  Verdict  319 

S.  W.  727;  English  v.  Mullanphy,  1  Mo.  780;  Coll'ms  v. 
Bowmer,  2  Mo.  195;  Bates  County  v.  Smith,  65  Mo.  464; 
Schulter's  Adm'r  v.  Bockivinkle's  Adm'r,  19  Mo.  647; 
Dumey  v.  Schoeffler,  20  Mo.  323;  Greene  Co.  v.  Gray,  146 
Mo.  568,  48  S.  W.  447.  The  answer  is  (1)  that  whether  the 
nonsuit  was  voluntary  or  involuntary  in  the  conception  of 
the  Supreme  Court  of  Missouri,  and  whether  or  not  it 
would  have  been  reviewable  by  that  court,  if  it  had  been 
granted  by  an  inferior  court  of  that  state,  an  indispensable 
condition  of  its  review  at  the  instance  of  a  plaintiff  in  error 
in  a  national  court  is  that  it  was  granted  "without  his  con- 
sent and  against  his  objection,"  and  this  judgment  lacks 
this  condition,  for  the  nonsuit  was  granted  at  his  request 
and  by  his  active  procurement;  (2)  that  the  plaintiff  was 
not  forced  by  the  decision  of  the  court  below  that  he  had 
failed  to  prove  his  case  to  take  a  nonsuit,  but  he  had  the 
option  to  take  the  verdict  and  judgment  against  him  and 
to  review  it,  and  if  it  was  erroneous  to  reverse  it  by  writ  of 
error,  or  to  take  the  dismissal  of  the  action  and  try  again; 
and  (3)  that  his  choice  of  the  latter  alternative  cannot  be 
made  involuntary  by  placing  that  deceptive  adjective  be- 
fore it  in  the  face  of  the  record  that  he  was  free  to  proceed 
to  verdict,  judgment,  and  review,  or  to  a  judgment  of  non- 
suit, and  that  of  his  own  free  will  and  against  the  motion 
and  objection  of  his  opponent  he  asked  and  secured  the  dis- 
missal. The  real  character  of  this  nonsuit  cannot  be  re- 
versed or  concealed  by  applying  to  it  a  false  epithet. 

It  has  been  a  fixed  rule  of  practice  of  the  appellate  courts 
of  the  United  States  for  almost  100  years  that  no  writ  of 
error  will  lie  at  the  suit  of  a  plaintiff  to  review  a  judg- 
ment of  nonsuit  which  has  been  rendered  at  his  request  or 
with  his  consent,  and  that  no  judgment  will  be  reversed  for 
an  error  which  the  plaintiff  in  the  writ  has  invited  the  court 
to  commit,  and  the  fact  that  the  Supreme  Court  of  Missouri 
calls  such  a  nonsuit  "involuntary"  and  reviews  it  presents 
no  persuasive  reason  why  one  of  the  national  appellate 
courts  should  depart  from  this  salutary  rule  while  there  are 
many  why  it  should  abide  by  and  enforce  it.  Courts  are 
established  and  maintained  to  settle  and  terminate  contro- 
versies between  citizens  and  to  enforce  their  rights,  not  to 
furnish  debating  societies  for  the  trial  of  legal  experiments. 


320  Trial  Practice  [Chap.  10 

The  chief  reason  of  their  being  is  to  end,  not  to  perpetuate, 
disputes.  "Interest  reipublicae  ut  sit  finis  litium/'  A 
practice  which  permits  a  plaintiff  to  experiment  with  the 
courts  and  to  harass  the  defendant  interminably  at  will 
runs  counter  to  the  basic  purpose  of  legal  tribunals  and  of 
all  civilized  governments,  and,  instead  of  assisting  to  wisely 
administer  justice,  it  inflicts  and  perpetuates  wrong.  Yet 
this  is  the  practice  which  a  grave  review  of  such  nonsuits 
as  that  in  hand  would  establish.  Under  it  a  plaintiff  could 
introduce  his  evidence  and  try  the  Circuit  Court  to  see 
whether  or  not  it  would  sustain  his  action.  If  it  granted 
a  motion  to  instruct  a  verdict  against  him,  he  could  procure 
from  the  court  an  involuntary  nonsuit,  then  sue  out  a  writ 
of  error  and  try  the  appellate  court,  and,  if  it  would  not  sus- 
tain his  action,  he  could  pay  the  costs,  bring  another  action 
for  the  same  cause,  and  continue  his  actions  and  experi- 
ments interminably.  The  federal  courts  ought  not  to  per- 
mit themselves  to  be  made  the  subjects  of  such  experiments. 
The  only  material  interests  involved  in  the  review  of  such 
judgments  are  the  costs  of  the  actions,  for  the  plaintiffs 
may  try  their  causes  again  whatever  the  decisions  of  the 
appellate  courts,  and  the  demands  upon  these  courts  for 
the  decision  of  real  and  important  issues  are  too  grave  and 
pressing  to  permit  them  to  devote  their  time  to  litigation  so 
frivolous. 

There  is  a  more  compelling  reason  why  proceedings  of 
this  nature  should  not  be  sustained.  The  plaintiff  is  not  the 
only  party  to  a  lawsuit  who  has  rights.  The  defendant  has 
some,  and  one  of  them  is  the  right,  not  only  to  a  fair  and 
impartial  trial  of  the  action  against  him,  but  to  a  final 
adjudication  of  the  alleged  cause  which  the  plaintiff  pre 
sents  and  to  a  termination  of  the  litigation  upon  it.  This 
right  he  can  never  enforce,  this  termination  he  can  never 
secure  under  the  practice  here  proposed,  for  there  is  no 
limit  to  the  number  of  actions  on  the  same  cause,  or  on  the 
want  of  it,  which  the  plaintiff  may  bring,  review,  and  dis- 
miss under  it. 

The  conclusion  is  that  a  writ  of  error  will  not  lie  in  a 
national  appellate  court  at  the  suit  of  the  plaintiff  to  re- 
view a  judgment  of  nonsuit  or  dismissal  which  has  been 
rendered  at  his  request  or  with  his  consent  after  the  court 


Sec.  ]J      Dismissal,  Non-Suit,  Directed  Verdict  321 

has  held  at  the  close  of  the  trial  that  the  defendant  is  en- 
titled to  a  verdict. 

This  case  has  been  considered  and  determined  upon  the 
theory  that  the  evident  intention  of  the  plaintiff  and  of  the 
court  to  render  a  judgment  of  nonsuit  has  been  effected. 
But  the  form  of  the  judgment  is  such  that  a  claim  may  be 
made  that  it  was  a  judgment  on  the  merits.  For  this  rea- 
son alone  the  judgment  will  be  reversed,  the  defendant  in 
error  will  recover  its  costs  in  this  court,  and  the  case  will 
be  remanded  to  the  Circuit  Court,  with  directions  to  render 
a  judgment  that  the  action  be  dismissed  without  prejudice 
to  the  right  of  the  plaintiff  to  maintain  another  for  the 
same  cause,  and  that  the  defendant  recover  its  costs  of  the 
plaintiff,  and  it  is  so  ordered. 


(d)     Form  of  Motion. 

FERGUSON  V.  INGLE. 

Supreme  Court  of  Oregon.    1900. 

38  Oregon,  43. 

Mr.  Justice  Moore,  after  stating  the  facts,  delivered  the 
opinion  of  the  court. 

1.  It  is  contended  by  plaintiff's  counsel  that  the  court 
erred  in  refusing  to  grant  a  voluntary  nonsuit  requested 
by  their  clients;  while  defendant's  counsel  insist  that,  the 
motion  therefor  not  having  specified  the  ground  upon  which 
it  was  predicated,  no  error  was  committed  in  this  respect. 
Considering  those  questions  in  inverse  order,  the  rule  is 
well  settled  that  the  motion  of  an  adverse  party  for  a  non- 
suit must  specify  the  grounds  therefor,  and,  unless  it  does 
so,  an  appellate  court  will  not  review  the  action  of  the  trial 
court  in  denying  the  motion :  14  Enc.  PI.  &  Prac.  117,  136 ; 
Silva  V.  Holland,  74  Cal.  530  (16  Pac.  385) ;  Flijnn  v.  Dougli- 
f.rtij,  91  Cal.  669  (27  Pac.  1080,  14  L.  R.  A.  230) ;  Wright  v. 
Fire  Ins.  Co.,  12  Mont.  474  (31  Pac.  87,  19  L.  R.  A.  211.) 
The  reason  for  this  rule  is  found  in  the  fact  that  an  appel- 
late court  will  consider  only  such  questions  as  have  been 
T.  p.— 2r 


322  Trial  Practice  [Chap.  10 

l)resented  to  the  trial  court  at  the  projier  time,  and  in  an 
appropriate  manner;  and  when  it  appears  that  the  ques- 
tion sought  to  be  reviewed  was  not  thus  submitted  to  such 
court  the  presumption  that  its  decision  thereon  is  correct 
ought  to  prevail.  But,  whatever  reason  may  be  adduced  for 
the  existence  of  this  rule,  the  point  insisted  upon  is  without 
merit,  for  the  motion  in  this  case  was  not  made  by  the  ad- 
verse party.  The  statute  provides,  in  effect,  that  the  plain- 
tiff, upon  his  own  motion,  may  secure  a  judgment  of  non- 
suit at  any  time  before  trial,  unless  a  counter-claim  has  been 
pleaded  as  a  defense.  Hill's  Ann.  Laws,  sec.  246.  A  volun- 
tary nonsuit  is,  therefore,  peremptory,  and,  whatever  mo- 
tive may  have  prompted  a  plaintiff  to  dismiss  his  suit  or 
action,  he  is  not  required  to  state  it;  for  if  the  motion  be 
made  before  trial,  and  in  the  absence  of  a  counter-claim 
])leaded  as  a  defense,  the  trial  court  is  without  discretion  in 
the  matter,  and  must  give  the  judgment  requested. 

The  judgment  is  therefore  reversed,  and  the  cause  re- 
manded, with  instructions  to  grant  the  nonsuit. 

Reversed. 


Section  2.     Nonsuit. 


CARROLL  V.  GRANDE  RONDE  ELECTRIC  COM- 
PANY. 

Supreme  Court  of  Oregon.    1907. 

49  Oregon,  477. 

Statement  by  Mr.  Chief  Justice  Bean. 

This  is  an  action  by  Eliza  Carroll,  administratrix,  against 
tlie  Grande  Ronde  Electric  Co.  On  August  28,  1905,  Leon- 
ard Carroll  was  killed  by  an  electric  wire  belonging  to  de- 
fendant company.  The  administratrix  of  his  estate 
})rouglit  an  action  to  recover  damages  on  account  of  his 
dcatli,  alleging  that  it  was  caused  by  the  negligence  of  de- 
fendant. The  defendant  answered,  denying  the  allegations 
of  tJK;  complaint,  and,  for  a  further  and  separate  defense, 


Sec.  2]      Dismissal,  Non-Suit,  Dieected  Verdict  32.^ 

setting  up  contributory  negligence  on  the  part  of  de- 
ceased. The  trial  was  begun  before  a  jury  on  issues  join- 
ed, and,  after  the  plaintiff  had  introduced  her  testimony 
and  rested,  the  defendant  moved  for  a  nonsuit,  on  the 
ground,  among  others,  that  the  evidence  showed  that  the 
death  of  her  intestate  was  caused  bv  liis  own  negligence. 
This  motion  was  allowed ;  the  record  of  such  allowance  re- 
citing 'Hhat  the  plaintiff's  intestate  Leonard  Carroll,  at 
the  time  of  the  accident  complained  of,  resulting  in  his 
death,  was  guilty  of  contributory  negligence,  which  was 
the  proximate  and  direct  cause  of  the  injury  resulting  in 
his  death."  The  judgment  was  subsequently  affirmed: 
Carroll  v.  Grande  Ronde  Elec.  Co.,  47  Or.  424,  (84  Pac. 
389;  6  L,  R.  A.,  N.  S.  290).  Thereafter  the  plaintiff  com- 
menced this  action  on  the  same  cause  as  is  alleged  in  the 
action  heretofore  referred  to.  The  defendant  pleads  the 
judgment  in  the  former  action  as  a  bar,  and,  such  plea  be- 
ing sustained,  judgment  was  rendered  in  its  favor,  and 
plaintiff  appeals. 

Reversed. 

Opinion  by  Mr.  Chief  Justice  Bean. 

The  statute,  after  providing  that  a  judgment  of  nonsuit 
may  be  given  against  the  plaintiff  on  motion  of  the  defend- 
ant, when  upon  the  trial  the  plaintiff  fails  to  prove  a 
cause  sufficient  to  be  submitted  to  the  jury  (Section  182,  B. 
&  C.  Comp.),  declares  that,  when  such  judgment  is  given, 
the  action  is  dimissed,  but  it  shall  not  have  the  effect  to 
bar  another  action  for  the  same  cause:  Section  184,  B.  & 
C.  Comp.  The  statute  would  seem  to  leave  no  room  for 
argument  as  to  the  effect  of  an  involuntary  judgment  of 
nonsuit.  But  the  defendant  contends  that  because,  in  the 
case  at  bar,  the  entry  of  the  order  sustaining  the  motion 
contains  a  statement  or  finding  that  the  contributory  negli- 
gence of  the  plaintiff's  intestate  was  the  proximate  cause 
of  his  death,  it  is  a  judgment  on  the  merits,  and  therefore 
a  bar  to  another  action.  The  vice  of  this  position  lies  in 
the  fact  that,  on  a  motion  for  a  nonsuit,  the  court  has  no 
jurisdiction  or  authority  to  pass  upon  the  merits  or  adjudi- 
cate the  rights  of  the  parties,  and  an  attempt  to  do  so  is  a 
nullity.  A  motion  by  defendant  for  a  nonsuit  does  not 
challenge  the  facts  as  shown  by  plaintiff,  nor  call  upon  the 


324  Teial  Practice  [Chap.  10 

court  to  determine  the  rights  of  the  parties,  but  only  to 
decide  as  a  matter  of  law  whether  upon  the  evidence  of 
plaintiff,  as  it  now  stands,  he  is  entitled  to  take  the  opinion 
of  the  jur}"  on  his  case.  It  is  a  motion  based  on  some  de- 
fect or  neglect  of  the  plaintiff,  and  does  not  involve  the 
merits.  The  plaintiff,  therefore,  is,  under  all  the  authori- 
ties, authorized,  if  the  motion  is  sustained  to  bring  his 
action  again:  Black,  Judgments  (2  ed.),  sec.  699;  Freeman, 
Judgments,  sec.  261;  Reynolds  v.  Garner,  66  Barb.  319; 
Lindvall  v.  Woods,  (C.  C),  47  Fed.  195;  Manhattan  Life 
Ins.  Co.  V.  Broughten,  109  U.  S.  121  (3  Sup.  Ct.  99,  27  L. 
Ed.  878) ;  United  States  v.  Parker,  120  U.  S.  89  (7  Sup.  Ct. 
454,  30  L.  Ed.  601) ;  Gardner  v.  Michigan  Cent.  R.  Co., 
150  U.  S.  349  (14  Sup.  Ct.  140,  37  L.  Ed.  1107).  And  it 
can  make  no  difference  upon  what  point  the  motion  is  al- 
lowed, or  how  the  judgment  may  be  framed,  or  what  reci- 
tals it  may  contain,  or  that  the  motion  was  ordered  upon 
the  failure  of  plaintiff's  evidence:  23  Cyc.  1137;  24  Am.  & 
Eng.  Enc.  Law  (2  ed.),  801;  Black,  Judgments  (2  ed.),  sec. 
699;  Glimmer  v.  Trustees  of  Village,  50  Wis.  247  (6  N.  W. 
885) ;  United  States  v.  Parker,  120  U.  S.  89  (7  Sup.  Ct. 
454,  30  Law.  Ed.  601).  It  is  still  nothing  but  a  judgment  of 
nonsuit,  which  has  been  likened  to  the  blowing  out  of  a 
candle,  which  a  man,  at  his  own  pleasure,  may  light  again, 
and  wliich  the  statute  declares  shall  not  be  a  bar  to  another 
action  for  the  same  cause.  At  the  time  the  motion  was 
made  by  the  defendant,  the  plaintiff,  on  her  own  motion, 
could  have  taken  a  voluntary  nonsuit,  which  certainly 
would  not  have  been  a  bar,  and  she  is  in  no  worse  position 
because  the  court  on  motion  of  defendant  did  what  she 
herself  voluntarily  could  have  done.  The  defendant  could 
have  had  a  judgment  which  would  have  been  a  bar  to 
another  action  if  it  had  rested,  and  submitted  the  case 
io  the  jury  on  plaintiff's  evidence,  instead  of  moving  for 
a  nonsuit,  but  it  has  no  right  to  experiment  with  a  motion 
for  a  nonsuit,  thus  reserving  to  itself  the  right,  if  the  ruling 
is  against  it,  to  go  into  a  full  trial  on  the  merits,  and  deny 
the  ])laiiitirr,  if  she  is  the  losing  party,  the  right  to  bring 
her  Mclioii  anew.  If  the  defendant  would  not  be  bound  by 
tlic  nilidg  on  the  motion,  the  plaintiff  ought  not  to  be.  If 
a  judgment  of  nonsuit,  on  the  motion  of  defendant,  is  an 
adjudication  upon  the  merits,  conclusive  on  the  plaintiff. 


Sec.  2]      Dismissal,  Non-Suit,  Directed  Verdict  325 

and  a  bar  to  another  action,  then  the  correlative  rule  must 
be  adopted,  that  a  denial  of  such  motion  is  conclusive  upon 
the  defendant,  and  operates  as  a  judgment  for  the  plaintiff, 
a  position  nowhere  asserted.  No  judgment  can  be  an  estop- 
pel unless  it  is  on  the  merits :  Freeman,  Judgments,  sec. 
260.  And  a  motion  for  a  nonsuit  is  a  waiver  of  the  right 
to  have  a  judgment  on  the  merits,  and  submits  to  the  court 
the  single  question  whether  the  plaintiff  has  proven  a  case 
sufficient  to  be  submitted  to  a  jury,  and  the  sustaining  or 
overruling  of  the  motion  is  an  adjudication  of  no  other 
matter.  The  case  of  Bartelt  v.  Seehorn,  25  Wash.  261  (65 
Pac.  185),  seems  to  be  contra  to  this  conclusion,  but  no 
authorities  are  cited  in  its  support,  and  we  have  been  un- 
able to  find  any,  and  the  rule  there  announced  is  against  the 
plain  provisions  of  our  statute. 

Judgmicnt  reversed,  and  cause  remanded  for  such  other 
proceedings  as  may  be  proper,  not  inconsistent  with  this 
decision. 

Reversed. 


SMALLEY  V.  RIO  GRANDE  WESTERN  RAILWAY 

COMPANY. 

Supreme  Court  of  Utah.    1908. 

34  Utah,  423. 

Straup,  J. 

This  action  was  brought  by  the  plaintiff  to  recover  dam- 
ages alleged  to  have  been  sustained  by  him  by  reason  of  the 
defendant's  negligence.  The  accident  happened  in  the  de- 
fendant's railroad  yard  at  Ogden.  It  was  alleged  in  the 
complaint  that  the  yard  was  located  between  two  streets  in 
a  well-settled  portion  of  the  city ;  that  in  the  vicinity  of  the 
accident  it  had  been  the  custom  of  the  public  to  cross  the 
yard  and  walk  along  the  tracks,  and  of  children  to  play 
about  the  yard  and  ride  on  cars,  with  the  knowledge  and 
consent  of  the  defendant ;  that  the  yard  and  cars  operated 
therein  were  alluring  and  attractive  to  young  children,  who 


326  Teial  Pkactice  [Chap.  10 

were  attracted  to  tlie  yard  aud  tempted  to  ride  on  cars; 
that  it  was  the  duty  of  the  defendant  to  fence  the  yard,  and 
in  switching  cars  to  have  a  sufficient  number  of  men  engaged 
at  such  work  to  perform  it  with  reasonable  safety  to  those 
who  might  be  in  and  about  the  yard,  and  to  have  persons 
stationed  on  the  cars  to  control  their  movements  and  to  ob- 
serve proper  lookout  for  the  presence  of  children  about  the 
tracks;  that  the  defendant  negligently  failed  to  perform 
such  duties,  by  reason  of  which  the  plaintiff,  a  boy  five 
years  of  age,  who  had  been  attracted  to  the  yard  and  at 
play  on  or  about  the  tracks,  was  run  against  and  injured  by 
a  car  moved  and  switched  about  the  yard.  The  defendant 
denied  the  negligence  charged  in  the  complaint,  and  alleged 
that  the  plaintiff  unlawfully,  and  without  the  knowledge  and 
consent  of  the  defendant,  entered  the  yard  and  while  tres- 
passing therein  attempted,  without  the  defendant's  knowl- 
edge and  consent,  to  board  a  moving  car,  which  was  being 
switched  about  the  yard,  and  in  so  doing  fell  and  was  in- 
jured without  fault  on  the  part  of  the  defendant,  and  that 
the  custodian  of  the  plaintiff,  in  whose  charge  the  child 
had  been  placed  by  its  father,  was  guilty  of  negligence  in 
permitting  it  to  wander  about  and  to  enter  the  yard.  The 
case  was  tried  to  the  court  and  jury. 

*  *  *  At  the  conclusion  of  the  evidence  the  court,  on  the 
defendant's  motion,  directed  the  jury  to  render  a  verdict, 
*'in  favor  of  the  defendant,  no  cause  of  action."  The  jury 
rendered  a  verdict,  finding  ''the  issues  joined  in  favor  of 
the  defendant,  and  against  the  plaintiff,  no  cause  of  ac- 
tion." A  judgment  was  entered  on  the  merits  in  favor  of 
the  defendant,  from  which  this  appeal  is  prosecuted  by 
plaintiff. 

It  is  contended  by  appellant  that,  though  the  evidence 
was  not  sufficient  to  let  the  case  to  the  jury,  the  court  never- 
tlieless  was  not  authorized  to  direct  a  verdict  and  enter  a 
judgment  on  merits,  as  was  done.  This  claim  is  made  up- 
on tlio  following  statutory  provisions  (section  3181,  Comp. 
Tiuws  1907) :  "An  action  may  be  dismissed  or  a  judgment 
of  nonsuit  entered  in  the  following  cases:  (1)  By  the  plain- 
tiff himself  at  any  time  before  trial,  upon  the  payment  of 
costs,  if  a  counter-claim  has  not  been  made,  or  affirmative 
relief  sought  by  the  answer  of  the  defendant,  etc.     (2)  By 


Sec.  2]      Dismissal,  Non-Suit^  Directed  Verdict  327 

cither  party  upon  the  written  consent  of  the  other.  (3)  By 
the  court  when  the  plaintiff  fails  to  appear  on  the  trial,  and 
the  defendant  appears  and  asks  for  the  dismissal.  (4)  By 
the  court  when  upon  the  trial  and  before  the  final  submis- 
sion of  the  case  the  plaintiff  abandons  it.  (5)  By  the  court 
upon  motion  of  the  defendant,  when  upon  the  trial  the 
plaintiff  fails  to  prove  a  sufficient  case  for  the  jury;  pro- 
vided, that  the  offering  of  evidence  after  the  overruling  of 
a  motion  for  a  nonsuit  shall  not  be  deemed  or  considered  a 
waiver  of  the  exception  taken  by  the  defendant  to  the  order 
overruling  such  motion.  (6)  By  the  court  when  after  ver- 
dict or  final  submission  the  party  entitled  to  judgment  neg- 
lects to  demand  and  have  the  same  entered  for  more  than 
six  months."  Section  3182:  ''In  every  case,  other  than 
those  mentioned  in  the  next  preceding  section,  judgment 
must  be  rendered  on  the  merits."  By  reason  of  these  pro- 
visions, especially  subdivision  5  of  section  3181,  it  is  ar- 
gued that  the  direction  of  a  verdict  in  favor  of  the  defend- 
ant, when  the  plaintiff  fails  to  prove  a  sufficient  case  for  the 
jury,  can  have  no  greater  effect  than  the  granting  of  a  mo- 
tion of  nonsuit.  *  *  *  * 

********** 

In  some  respects  the  principles  applying  to  a  motion  of 
nonsuit  also  apply  to  a  motion  for  a  direction  of  a  verdict. 
In  a  general  sense  it  may  be  said  that  both  take  the  place 
of  a  demurrer  to  the  evidence  and  are  governed  by  the  same 
principles.  But  a  demurrer  to  the  evidence  was  a  submis- 
sion of  the  case  for  final  determination,  which  determina- 
tion called  for  a  judgment  on  the  merits.  Our  Code  has 
provided  under  what  circumstances  a  motion  of  nonsuit 
may  be  granted,  and  that  the  granting  of  such  a  motion 
shall  not  be  an  adjudication  on  merits,  nor  shall  the  over- 
ruling of  such  a  motion  preclude  the  moving  party  from 
thereafter  offering  evidence,  as  was  the  case  on  a  demurrer 
to  evidence.  The  court  may,  at  the  close  of  plaintiff's  evi- 
dence, on  plaintiff's  motion,  grant  a  voluntary,  and  on  the 
defendant's  motion  an  involuntary,  nonsuit.  The  court 
may  do  the  same  thing  at  the  close  of  all  the  evidence,  and 
before  the  case  has  been  submitted  for  firial  determination. 
In  each  of  such  cases  the  judgment  is  not  on  the  merits 
The  plaintiff,  however,  at  the  close  of  liis  evidence  may  rest 
and  submit  the  case  for  final  determination.     The  defend- 


328  Trial  Peactice  [Chap.  10 

ant  may  do  likewise  witliout  offering  any  evidence.  So,  too, 
at  the  close  of  all  the  evidence  offered  by  both  parties,  the 
plaintiff  may  still  submit  the  case  for  final  determination, 
as  also  may  the  defendant.  Wlienever  a  party  ''rests"  his 
case,  he  indicates  that  he  has  produced  all  the  evidence  he 
intends  to  offer,  and  submits  the  case,  either  finally,  or  sub- 
ject to  his  right  to  afterwards  offer  rebutting  evidence. 
When  both  parties  have  "rested,"  they  indicate  a  submis- 
sion of  the  case  for  final  determination.  The  determination 
on  such  a  submission  is  on  the  merits.  If  the  facts  are  in 
dispute,  the  case  must  be  sent  to  the  jury  for  their  finding, 
upon  which  a  judgment  on  merits  is  entered  accordingly. 
If  the  facts  are  not  in  dispute,  the  determination  presents 
a  mere  question  of  law,  to  be  decided  by  the  court,  upon 
whose  decision,  or  upon  the  rendition  of  a  verdict  directed 
by  him,  a  judgment  is  also  entered  on  the  merits.  Upon 
a  final  submission  of  the  case,  when  there  is  no  evidence  to 
sustain  the  case  of  the  party  having  the  affirmative,  it  is 
proper  for  the  court  to  direct  a  verdict  against  him.  It  is 
as  proper  for  the  court  to  direct  a  verdict  against  the  plain- 
tiff, in  the  absence  of  proof  to  establish  a  fact  essential  to 
his  case,  as  to  direct  a  verdict  against  him  when  the  proof, 
either  upon  his  own  evidence  or  that  of  the  defendant,  con- 
clusively establishes  some  affirmative  defense.  We  do  not 
understand  the  statute  to  mean  that  the  court  is  authorized 
to  direct  a  verdict  in  the  one  instance,  but  not  in  the  other, 
or  that  the  court  is  unauthorized  to  direct  a  verdict  in  any 
case.  In  the  case  in  hand,  upon  the  evidence  adduced  by 
both  parties,  the  case  was  submitted  for  final  determina- 
tion without  the  making  of  a  motion  of  nonsuit  or  dismissal 
by  either  party.  Upon  such  a  submission  the  defendant 
urged  that  the  facts  were  not  in  dispute,  and  that,  on  the 
esta])lished  facts,  it,  as  matter  of  law,  was  entitled  Lo  a 
judgment  in  its  favor.  On  the  other  hand,  the  plaintiff 
ui-ged  that  the  facts  were  in  dispute,  and  that  the  question 
of  the  defendant's  negligence  was  one  of  fact,  and  not  of 
law,  and  hence  the  determination  of  the  case  required  a 
finding  by  the  jury.  In  such  case  the  determination,  wheth- 
er made  by  the  court  as  matter  of  law,  or  by  tlie  jury  as 
matter  of  fact,  called  for  a  judgment  on  the  merits.  We 
are  tliorefore  of  the  opinion  that  the  court  was  fully  au- 
thorized to  direct  such  a  verdict  and  to  enter  such  a  judg- 


Sec.  2]      Dismissal,  Non-Suit,  Directed  Verdict  329 

ment.     Whether  the  ruling  was  erroneous  remains  to  be 
considered. 

It  is  urged  that  the  court  erred  in  directing  a  verdict 
because  no  grounds  were   stated  for  such   action.     This 
court  has  repeatedly  held  that  the  particular  grounds  upon 
which  a  motion  for  nonsuit  is  based  must  be  stated  in  order 
that  the  attention  of  the  court  and  counsel  may  be  called 
thereto,  and  that  the  defects  in  the  proof  may  be  obviated 
and  corrected,  if  such  defects  admit  of  correction.    Frank 
V.  Bullion-Beck,  etc.,  M.  Co.,  19  Utah,  35,  56  Pac.  419 ;  Skeen 
V.  0.  S.  L.  R.  R.  Co.,  22  Utah,  413,  62  Pac.  1020 ;  Leivis  v. 
Mining  Co.,  22  Utah,  51,  61  Pac.  860;  Wild  v.  Union  Pac. 
Ry.  Co.,  23  Utah,  266,  63  Pac.  886,  and  other  cases  there 
cited.    From  the  above  cases  it  will  be  seen  that  a  judgment 
of  nonsuit  in  a  number  of  them  was  reversed  because  the 
grounds  upon  which  the  motion  was  based  were  not  suffici- 
ently specified,  regardless  of  the  question  of  the  sufficiency 
of  the  evidence  to  send  the  case  to  the  jury.     The  general 
rule,  when  a  motion  is  denied  or  an  objection  overruled, 
the  moving  party  is  permitted,  on  appeal,  to  urge  only 
such  grounds  for  a  reversal  as  were  specifically  pointed 
out  or  made  by  him  before  the  trial  court,  but  when  the 
motion  or  objection  is  sustained,  because  of  the  presump- 
tion against  error  coming  to  his  aid,  a  party  is  permitted, 
on  appeal,  to  defend  the  ruling  on  any  ground  inhering 
in  the  record,  was,  either  in  effect  or  expressly,  held,  in  a 
number  of  cases  in  this  jurisdiction,  not  applicable  to  a 
motion  of  nonsuit.     In  the  case  of  White  v.  Rio  Grande 
Western  Ry.  Co.,  22  Utah,  138,  61  Pac.  568,  it  was  expressly 
decided  that  there  is  no  difference  with  respect  to  the  rule 
requiring  a  specification  of  grounds  when  the  motion  is 
denied  and  when  the  motion  is  sustained.    In  Mclntyre  v. 
Ajax  Min.  Co.,  20  Utah,  332,  60  Pac.  552,  this  court  held 
that  ''an  appellate  court  will  not   sustain   a  motion  for 
nonsuit,  except  on  the  grounds  alleged  in  the  motion, ' '  and 
approvinglv  quoted  the  syllabus,  in  the  case  of  Palmer  v. 
Marysville  Dem.  Puh.  Co.,  90  Cal.  168,  27  Pac.  21  that 
''It  is  error  for  the  trial  court  to  grant  a  nonsuit,  unless 
the  grounds  therefor  are  called  to  the  attention   of  the 
trial  judge  and  the  plaintiff  at  the  time  the  motion  is  made; 
and,  where  none  of  the  grounds  upon  which  the  nonsuit  is 
asked  are  sufficient  to  warrant  the  court  in  granting  the 


330  Trial  Practice  [Chap.  10 

motion,  the  order  granting  it  will  be  reversed,  although 
another  gronnd,  not  specified  in  the  motion,  might  have 
warranted  the  order." 

We  think  the  reasons  given  by  courts,  requiring  the 
grounds  upon  which  a  motion  for  nonsuit  is  based  to  be 
specified,  in  order  that  the  court  ma_y  know  upon  what 
question  of  law  the  case  is  asked  to  be  taken  from  the  jury, 
and  the  party  against  whom  the  motion  is  directed  may 
be  afforded  opportunity  to  correct  the  defects,  if  they  ad- 
mit of  correction,  and  can  be  obviated  by  additional  evi- 
dence, apply  with  equal  force  to  a  motion  for  a  direction 
of  a  verdict.  If  such  opportunity  should  be  afforded  him 
on  a  motion  of  nonsuit,  which,  if  granted,  would  not  be  an 
adjudication  on  the  merits,  and  not  a  bar  to  another  action, 
for  much  stronger  reasons  should  such  opportunity  be  given 
him  on  a  motion  for  a  direction  of  a  verdict,  which,  if 
granted,  would  be  a  bar  to  another  action.    *    *    * 

*  *  *  In  the  case  of  Tandercup  v.  Hansen,  8  S.  D.  375, 
66  N.  W.  1073,  it  was  said: 

"Where  such  a  motion  is  made,  the  specific  ground  upon 
which  the  motion  is  made  must  be  stated.  It  is  due  to  the 
court  and  the  opposing  counsel,  that  their  attention  should 
be  called  to  the  precise  defect  in  the  evidence,  or  the  omis- 
sion of  evidence,  that  the  party  claims  entitles  him  to  the 
direction  of  the  verdict.  It  is  due  to  the  court  to  enable 
it  to  pass  understandingly  upon  the  motion,  and  it  is  due 
to  counsel  that  he  may,  if  possible,  supply  the  defective 
or  omitted  evidence  if  permitted  to  do  so  by  the  court." 

The  same  doctrine  is  stated  in  6  PI.  &  Pr.  699,  in  the  fol- 
lowing language: 

"The  motion  to  direct  a  verdict,  and  the  judge  in  mak- 
ing such  direction,  should  specify  the  particular  ground  or 
grounds  which  justify  it." 

We  have  not  been  referred  to,  nor  have  we  seen,  any 
case  holding  to  the  contrary.  This,  however,  does  not  mean 
that  the  movant  of  the  motion  or  the  court  is  required  to 
state  reasons  supporting  the  grounds.  If  the  grounds  are 
sulliciently  specified  to  call  attention  to  the  particular  de- 
fects and  the  (luostion  of  law  on  which  the  case  is  taken 
from  the  jury,  that  is  all  that  is  required.  A  mere  general 
statement  that,  under  the  evidence,   the  plaintiff  is   not 


Sec.  2]       Dismissal,  Non-Suit,  Dihelted  Verdict  331 

entitled  to  recover,  or  that  the  defendant  is  entitled  to  a 
verdict,  or  that  the  plainiff  has  not  made  a  sufficient  case 
to  go  to  the  jury,  does  not  point  to  an\i;hing.  If,  however, 
in  a  case  of  negligence  a  specification  is  made  that  the  evi- 
dence is  insufficient  to  show  negligence  on  the  part  of 
the  defendant,  or  that  under  the  evidence  the  plaintiff  is 
conclusively  shown  to  be  guilty  of  contributory  negligence, 
or  that  he  assumed  the  risk,  etc.,  such  a  specification  is 
ordinarily  sufficient.  If  a  verdict  is  directed  on  the  ground 
that  the  evidence  is  insufficient  to  show  negligence  on  the 
part  of  the  defendant,  it  sufficiently  is  made  to  appear  on 
what  question  of  law  the  case  was  taken  from  the  jury. 
The  making  of  such  a  specification  ordinarily  points  out 
the  defect  within  the  meaning  of  the  adjudicated  cases. 
The  court  in  such  instance  may  give  reasons  why  in  his 
opinion  the  e\ddence  is  insufficient  to  show  such  negligence. 
Though  the  reasons  given  may  be  groundless,  yet,  if  upon 
an  examination  of  the  record  the  evidence  is  found  insuffici- 
ent to  show  such  negligence,  the  ruling  must  be  upheld.  The 
rule  is  also  qualified  to  the  extent  that,  if  it  is  otherwise 
made  manifest  upon  what  question  of  law  the  case  was 
taken  from  the  jury,  and  the  defects  upon  which  it  was 
based  do  not  admit  of  correction,  or  could  n<ot  have  been 
cured  had  direct  attention  been  called  thereto,  a  failure  to 
specify  grounds  will  not  reverse  the  ruling.  Daley  v.  Russ, 
86  Cal.  114,  24  Pac.  867;  Fontana  v.  Pac.  Can.  Co.,  129  Cal. 
51,  61  Pac.  580.  It  may,  however,  be  urged  that  a  request 
to  direct  a  verdict  is  a  request  to  charge,  and  that  a  party 
submitting  requests  is  not  required  to  state  reasons  or 
grounds  in  sujDport  of  them.  But  a  request  to  direct  a  ver- 
dict is  not  a  request  to  charge  the  jury.  It  is,  in  effect,  a 
motion  to  take  the  case  from  their  consideration.  When 
a  verdict  is  directed  by  the  court,  the  jury  is  bound  to 
render  the  verdict  as  directed.  In  such  instance  the  court 
alone  determines  the  case,  and  there  is  no  occasion  to  in- 
struct or  charge  the  jury  in  respect  of  the  law  applicable  to 
the  case. 

"With  these  observations  we  now  proceed  to  the  question 
in  hand.  At  the  conclusion  of  all  the  evidence,  and  after 
both  parties  had  rested,  counsel  for  the  defendant  stated: 
**I  now  move  the  court  to  instruct  the  jury  to  return  a 
verdict  in  favor  of  the  defendant,  no  cause  of  action ;  and. 


332  Trial  Practice  [Chap.  10 

in  view  of  the  elaborate  discussion  that  has  been  had,  I 
am  not  inclined  to  argue  it,  unless  the  court  desires  to  hear 
further  upon  some  particular  question  from  us.  If  counsel 
cares  to  argue  it,  I  will  replj^  to  any  suggestions  that  he 
may  have."  It  must  be  conceded  that  the  motion  itself 
specifies  no  grounds,  and  were  that  all  that  was  made  to 
appear,  it  would  be  very  doubtful  whether  the  question  of 
law  upon  which  the  verdict  was  asked  to  be  directed  was 
sufficiently  indicated.  Counsel  for  plaintiff  in  reply  to  the 
suggestion  stated  that  he  did  not  care  to  argue  questions 
which  had  already  been  argued.  As  disclosed  by  the  rec- 
ord, the  questions  referred  to  involved  the  doctrine  of  the 
''turntable"  cases,  and  its  application  to  the  facts  in  the 
case.  Counsel  for  plaintiff  further  stated  that,  under  all 
the  circumstances  of  the  case,  whether  the  employees  of 
the  defendant  exercised  due  care  in  the  premises  was  a 
question  of  fact  for  the  jury,  and  urged  that  the  evidence 
was  conflicting  as  to  whether  the  child  caught  hold  of  the 
car,  or  whether  it  was  injured  in  some  other  way.  The 
court  then  observed  that,  if  counsel  desired  to  take  the 
position  that  there  was  such  a  conflict,  he  would  exclude 
the  jury  and  permit  counsel  to  argue  it.  The  jury  was 
thereupon  excluded,  and  the  matter  then  discussed  by  coun- 
sel for  plaintiff.  In  that  connection  he  also  discussed  the 
question,  and  took  the  position  that  the  employees  were 
guilty  of  negligence  in  not  anticipating  the  return  of  the 
child,  and  in  failing  to  discover  it  after  it  had  returned  to 
the  yard.  At  the  conclusion  of  plaintiff's  discussion,  the 
court  indicated  that  he  did  not  care  to  hear  from  counsel 
for  the  defendant,  and  stated  that,  in  his  opinion,  the  evi- 
dence without  dispute,  showed  that  the  plaintiff  attempted 
to  get  on  the  car,  or  was  riding  on  the  car,  at  the  time  the 
injury  was  icflicted,  and  that,  under  the  circumstances,  he 
was  not  entitled  to  recover.  The  jury  was  thereupon  re- 
called, and  directed  to  return  a  verdict  for  the  defendant. 
The  particulars  upon  which  the  verdict  was  directed  were 
theretofore  called  to  the  attention  of  counsel,  and  the  ques- 
tion of  law  upon  which  the  verdict  was  directed  sufficiently 
indicated.  If  the  defects  were  curable,  plaintiff  was  in  the 
same  position  to  cure  them  as  though  the  motion  itself  had 
specified  the  grounds. 

This,  then,  brings  us  to  the  further  point,  made  by  the 


Sec.  2]      Dismissal,  Non-Suit,  Directed  Verdict  333 

appellant,  that  the  evidence  was  sufficient  to  send  the  case 
to  the  jury  on  the  question  of  the  defendant's  negligence. 

In  this  case  the  presence  of  the  plaintiff  and  his  com- 
panion, on  their  first  visit  to  the  yard,  was  discovered  by 
the  defendant's  employees.  Instead  of  remaining  passive 
and  inactive,  the  employees  took  sufficient  affirmative  ac- 
tion in  the  premises  to  cause  the  removal  of  the  children,  i 
In  obedience  to  the  direction  given  them  they  left  the  yard 
and  entered  upon  adjoining  premises,  and  disappeared 
from  the  sight  of  the  employees.  The  employees  gave  the 
matter  sufficient  attention  to  satisfy  themselves  that  the 
children  had  left  the  premises,  and  that  they  were  no  longer 
in  danger.  Up  to  this  point  it  is  not  contended  that  the 
defendant's  employees  did  not  do  all  that  due  care  re- 
quired. Thereafter  they  directed  their  attention  to  their 
work,  and  continued  switching  and  moving  cars  about  the 
yard.  In  a  few  minutes  the  children,  without  the  observa- 
tion of  the  employees,  again  entered  the  yard  and  stood 
between  the  fence  and  the  track  several  lots  to  the  east 
of  the  place  where  they  had  left  the  premises,  and  there 
watched  the  car  slowly  approaching  them.  When  it  reached 
them,  they,  without  the  knowledge  of  the  defendant's  em- 
ployees, took  hold  of  it  and  attempted  to  get  on  it.  To 
now  hold  with  appellant's  contention  that  the  employees 
ought  to  have  anticipated  that  the  children  might  return, 
and  that  they  were  required  to  observe  a  lookout  for  them 
before  moving  and  switching  the  car  from  one  track  to 
another,  or  to  accompany  it  so  as  to  warn  the  children 
away  or  prevent  them  from  getting  on  it,  requires  not  only 
a  holding  that  the  employees  were  in  duty  bound  to  use 
care  to  discover  the  presence  of  trespassing  children,  and. 
of  wholly  unauthorized  intrusions  of  others,  to  the  same 
extent  as  to  discover  the  presence  of  persons  and  children 
who  may,  with  knowledge  on  the  part  of  the  employees,  be 
rightfully  about  the  premises,  but  also  requires  a  holding 
that  the  employees  were  required  to  use  care  to  prevent 
trespassing  children  from  injuring  themselves  in  the  de- 
fendant's yard.  Upon  the  undisputed  facts  in  the  case  the 
law  does  not  warrant  such  a  holding.  Though  it  should 
be  held  that  the  employees,  in  the  switching  and  moving 
of  cars  about  the  yard,  owed  a  duty  in  the  premises  to  use 


334  Trial  Peactice  [Chap.  10 

care  in  such  operations,  the  evidence  is  insufficient  to  jus- 
tify a  finding  that  such  operations  were  conducted  in  a  neg- 
ligent manner,  or  that  the  act  of  moving  the  car  along  the 
track  was  the  proximate  cause  of  the  injury.  So  far  as 
made  to  appear,  the  car  was  switched  in  the  usual  and  ordi- 
nary way  from  one  track,  and  moved  along  another,  at  a 
speed  of  from  three  to  four  miles  an  hour.  The  children 
were  not  struck  by  the  car.  It  was  not  the  manner  in  which 
the  car  was  oj^erated  that  caused  it  to  collide  with  plaintiff, 
or  that  caused  the  plaintiff  coming  in  contact  with  it.  The 
direct  cause  of  his  coming  in  contact  with  the  car  was  his 
taking  hold  of  the  car  and  attempting  to  ride  on  it  with- 
out the  knowledge  or  consent  of  the  defendant's  employees. 
While  the  child,  because  of  its  age,  cannot  be  regarded  a 
conscious  trespasser,  nor  held  chargeable  of  contributory 
negligence,  nevertheless  the  consequences  of  its  acts  can- 
not be  charged  to  the  defendant.  The  conduct  of  the  child 
was  in  no  sense  influenced  or  induced  by  any  act  or  conduct 
on  the  part  of  the  defendant  or  its  employees,  nor  was  the 
injury  occasioned  because  of  any  negligence  on  their  part. 
We  are  of  the  opinion  that  the  court  was  justified  in  direct- 
ing a  verdict  in  favor  of  the  defendant. 

The  judgment  of  the  court  below  is  therefore  affirmed, 
with  costs. 

McCaety,  C.  J.,  and  Feick,  J.,  concur. 


BOPP  V.  NEW  YORK  ELECTRIC  VEHICLE  TRANS- 
PORTATION COMPANY. 

Court  of  Appeals  of  New  York.    1903. 

177  New  York,  33. 

Vann,  J. 

At  the  close  of  the  plaintiff's  evidence  in  chief,  each  de- 
fendant made  a  separate  motion  for  a  nonsuit  and  each 
exc(*))1('(l  to  the  action  of  the  court  in  denying  the  motion. 
Each  defendant  had  the  right  to  then  withdraw  from  the 
case  and  rest  upon  its  exception.  Neither  did  so.  The  Ve- 
\\'\v\it  Company  ]>i('k(Ml  ii])  the  burden  first,  put  in  its  evi- 


Sec.  2]      Dismissal,  Nox-Suit,  Directed  Veedict  335 

dence  and  again  moved  for  a  nonsuit.  Assuming  that  an 
exception  was  taken  to  tlie  denial  of  its  motion,  for  the 
second  time  it  was  in  a  situation  to  rely  on  its  exception 
and  refuse  to  take  any  further  part  in  the  trial.  It  did 
not  do  so.  On  the  contrary,  it  continued  to  take  an  active 
and  aggressive  part  in  the  trial  by  cross-examining  the  wit- 
nesses of  its  codefendant,  thoroughly  and  at  length.  It 
aided  in  developing  the  facts  and  attempted  to  defend  it- 
self against  the  allegations  of  the  plaintiff  and  the  effort 
of  the  other  defendant  to  fasten  the  responsibility  upon 
it  alone.  It  did  not  succeed,  and  it  now  claims  that  all  its 
action,  after  its  motions  to  nonsuit  were  denied,  should  go 
for  naught  and  be  ignored  upon  the  ground  that  the  ques- 
tion is  the  same  as  if  it  had  withdrawn  from  the  case  at 
that  time.  We  do  not  think  so.  It  did  not  remain  in  the 
case  for  amusement,  but  for  self-defense,  and  it  could  not 
make  further  efforts  to  defend  itself  without  running  the 
usual  risks.  The  plaintiff  had  the  right  to  rely  upon  any 
evidence  in  her  favor,  whether  it  was  put  in  by  herself  or 
by  either  defendant,  and  the  Vehicle  Company  by  failing 
to  withdraw  when  it  had  the  right  to  and  continuing  to  take 
part  in  the  trial,  ran  the  risk  that  evidence  tending  to  make 
it  liable  would  be  received.  The  situation  does  not  differ 
in  principle  from  the  ordinary  case  where  a  sole  defendant, 
instead  of  withdrawing  when  he  fails  to  secure  a  nonsuit, 
continues  to  take  part  in  the  investigation  to  the  end.  In 
so  doing,  even  if  his  motion  should  have  been  granted  when 
made,  the  exception  is  undermined  and  becomes  of  no  avail, 
provided  at  the  close  of  the  whole  case  the  evidence  pre- 
sents a  question  for  the  jury. 

Thus  in  Jones  v.  Union  Railway  Company  (18  App,  Div. 
267,  268)  Judge  Cullen  said:  "When  the  defendant  enters 
into  its  proof,  the  question  never  is,  whether  the  plaintiff's 
evidence  is  sufficient  to  justify  the  submission  of  the  case 
to  the  jury,  but  whether,  on  the  whole  case,  there  is  a  ques- 
tion of  fact  as  to  the  defendant's  liability.  If,  at  the  close 
of  a  plaintiff's  case,  the  defendant  is  confident  that  no 
eause  of  action  has  been  made  out,  the  only  method  of  se- 
curing a  review  of  an  erroneous  ruling  on  the  point  is  to 
let  the  case  stand  without  further  evidence.  If  the  defend- 
ant enters  upon  its  evidence,  it  takes  the  chances  of  supply- 
ing the  deficiencies  of  the  plaintiff's  case." 


336  Trial  Practice  [Chap.  10 

So  in  Hopkins  v.  Clark  (158  N.  Y.  299,  304)  we  said 
through  Judge  Bartlett:  ''The  rule  laid  down  by  the 
Supreme  Court  of  the  United  States  seems  the  proper  one, 
to  the  effect  that  when  a  defendant,  after  the  close  of  the 
plaintiff's  evidence,  moves  to  dismiss,  and,  the  motion  be- 
ing denied,  excepts  thereto,  and  then  proceeds  with  his 
case,  and  puts  in  evidence  on  his  part,  he  thereby  waives 
the  exception,  and  the  overruling  of  the  motion  to  dismiss 
cannot  be  assigned  as  error." 

Judge  Martin  relied  upon  the  case  last  cited,  when,  speak- 
ing for  us  all,  he  said:  "Where  after  a  motion  to  dismiss 
at  the  close  of  the  plaintiff's  evidence,  a  defendant  pro- 
ceeds with  his  case  and  puts  in  evidence  on  his  part,  he 
thereby  waives  the  exception  to  the  refusal  to  nonsuit  when 
the  plaintiff  rested."  {Sigua  Iron  Co.  v.  Broivn,  171  N.  Y. 
488,  506). 

The  rule  of  the  Federal  courts  was  expressed  by  Chief 
Justice  Waite  as  follows:  "It  is  undoubtedly  true  that  a 
case  may  be  presented  in  which  the  refusal  to  direct  a  ver- 
dict for  the  defendant  at  the  close  of  the  plaintiff's  testi- 
mony will  be  good  ground  for  the  reversal  of  a  judgment 
on  a  verdict  in  favor  of  the  plaintiff,  if  the  defendant  rests 
his  case  on  such  testimony  and  introduces  none  in  his  own 
behalf ;  but  if  he  goes  on  with  his  defense  and  puts  in  testi- 
mony of  his  own,  and  the  jury,  under  proper  instructions, 
finds  against  him  on  the  whole  evidence,  the  judgment  can- 
not be  reversed,  in  the  absence  of  the  defendant's  testi- 
mony, on  account  of  the  original  refusal,  even  though  it 
would  not  have  been  wrong  to  give  the  instruction  at  the 
time  it  was  asked."  {Grand  Trunk  Railway  Co.  v.  Cum- 
mings,  106  U.  S.  700,  701.  See,  also,  Littlejohn  v.  Shaiv, 
159  N.  Y.  188,  191;  Wangner  v.  Grimm,  169  N.  Y.  421,  427; 
Accident  Insurance  Co.  v.  Grandal,  120  U.  S.  527;  Northern 
Pacific  R.  R.  Co.  v.  Mares,  123  U.  S.  710;  Robertson  v.  Per- 
kins, 129  U.  S.  233 ;  Columbia  S  P.  S.  R.  R.  Co.  v.  Haiv- 
thorne,  144  U.  S.  202,  206;  Union  Pacific  R.  Co.  v.  Daniels, 
152  U.  S.  684.) 

In  the  cases  cited  the  defendant  ran  the  risk  that  his 
own  evidence  might  supply  any  defect  in  the  plaintiff's 
evidence.  So,  in  this  case,  the  Vehicle  Company,  by  con- 
timrmg  to  try  its  case,  for  that  is  what  it  did,  ran  the  risk 
tbut  tiie  evidence  of  its  codefendant  would  supply  the  de- 


Sec.  2]      Dismissal,  Non-Suit,  Directed  Verdict  337 

fects  in  the  plaintiff's  case  against  itself.  It  could  not 
keep  on  trying  its  case  without  abiding  by  the  condition 
of  the  evidence  when  all  the  testimony  was  in.  At  that 
time  there  was  a  question  for  the  jury  as  to  its  liability, 
and  hence  its  j^revious  exceptions,  taken  when  the  evidence 
did  not  present  that  question,  became  of  no  avail. 

It  did  not  let  go  of  the  case  when  it  could  have  done  so 
in  safety,  but  hung  on  until  there  was  evidence  enough  to 
warrant  a  vt^rdi-^t  against  it. 

Courts  sit  to  do  justice  according  to  the  rules  of  law 
after  giving  all  parties  an  opportunity  to  be  heard.  The 
Vehicle  Company  had  its  day  in  court  and  was  fully  heard. 
No  legal  evidence  was  excluded  and  no  incompetent  evi- 
dence was  received  to  its  injury.  It  took  no  exception  to 
the  charge  of  the  court.  Under  these  circumstances  public 
business  and  private  rights  should  not  be  delayed  by  grant- 
ing a  new  trial  on  account  of  an  error  which  was  waived 
by  the  subsequent  course  of  the  party  now  complaining. 

The  Vehicle  Company  was  not  compelled  to  remain  in 
the  case  in  order  to  get  an  exception  when  its  second  mo- 
tion was  not  granted,  because  an  effort  to  except,  made  at 
the  proper  time  and  in  the  proj^er  form,  is  an  exception, 
whether  allowed  by  the  court  or  not. 

After  considering  all  the  exceptions  taken  by  both  de- 
fendants we  find  none  upon  which  a  new  trial  should  be 
granted  in  behalf  of  either. 

The  judgment  should  be  affirmed,  with  costs. 

Gray,  J.    (dissenting). 

********** 

Haight,  Maetin  and  "Wernee,  JJ.,  concur  with  Vann,  J. ; 
Parker,  Ch.  J.,  and  O'Brien,  J.,  concur  with  Gray,  J. 
Judgment  affirmed. 


T.  p.— 22 


338  Trial  Practice  [Chap.  10 

Section  3.     Directed  Verdict. 

(a)     Whe7i  Proper. 

MEYER  V.  HOUCK. 

Supreme  Court  of  Iowa.    1892, 

85  Iowa,  319. 

The  defendants  are  husband  and  wife.  On  the  twenty- 
seventh  day  of  November,  1889,  the  defendant  C.  F.  Houck 
executed  and  delivered  to  Calla  Houck  his  promissory  note 
for  about  twelve  hundred  dollars,  and  a  chattel  mortgage 
upon  a  stock  of  goods  and  merchandise,  to  secure  the  pay- 
ment of  the  note.  The  mortgage  was  filed  for  record  on  the 
fourth  day  of  December,  1889,  and  duly  recorded.  On  the 
seventh  day  of  December,  1889,  the  plaintiffs  commenced 
an  action  against  C.  F.  Houck  upon  an  account  for  goods 
sold  and  delivered  to  him,  and  sued  out  an  attachment,  and 
caused  the  same  to  be  levied  upon  the  mortgaged  goods. 
Calla  Houck  intervened  in  the  action,  and  claimed  the  goods 
as  mortgagee.  The  plaintiffs  answered  her  petition  of 
intervention  by  claiming  that  the  mortgage  was  invalid 
and  void  as  to  creditors  of  C.  F.  Houck,  because  it  was 
made  with  intent  to  defraud  said  creditors.  There  was  a 
trial  by  jury,  and  when  the  plaintiffs  completed  the  intro- 
duction of  their  evidence  the  intervenor  moved  the  court 
to  direct  the  jury  to  return  a  verdict  against  the  plaintiffs. 
The  motion  was  sustained,  and  the  jury  returned  the  ver- 
dict as  directed,  upon  which  judgment  was  entered.  The 
plaintiffs  appeal. — Affirmed. 

Rothrock,  J. 

But  it  is  further  claimed  that  there  was  some  evidence 
tending  to  show  that  the  transaction  in  question  was  fraud- 
ulent, and  that  it  was  the  duty  of  the  court  to  submit  the 
case  to  tlie  jury  if  there  was  any  evidence,  however  slight. 
It  may  ])e  conceded  that  there  was  some  evidence.  There 
are  one  or  two  facts  which  might  be  regarded  as  badges  of 
fraud;  but,  wlien  weighed  in  tlie  balance  with  the  other 
evidence,  tliey  do  not  constitute  such  a  conflict  as  would 
authorize  a  verdict  for  the  plaintiffs.    The  rule  of  practice 


Sec.  3]      Dismissal,  Non-Suit,  Directed  Verdict  339 

in  relation  to  directing  verdicts  which  has  prevailed  in 
this  state  is  well  understood.  A  motion  to  direct  a  verdict 
for  the  defendant  has  been  regarded  as  a  demurrer  to  the 
evidence,  and  it  has  always  been  held  that  such  a  motion 
not  only  admits  the  truth  of  the  fact  found,  but  every  fact 
and  conclusion  which  the  evidence  conduces  to  prove,  or 
which  the  jurj^  might  have  inferred  therefrom  in  his  favor. 
The  rule  was  stated  in  very  nearly  the  foregoing  language 
in  Jones  v.  Ireland,  4  Iowa,  63.  And  that  practice  has  ob- 
tained in  this  state  up  to  the  present  time.  There  are  a 
multitude  of  cases  adhering  to  the  rule.  It  is  unnecessary 
to  cite  them.  They  will  be  found  collected  in  McClain's 
Digest  (volume  2,  pp.  335-338).  The  practice  has  been 
that  where  there  is  what  is  called  a  "scintilla  of  evidence" 
to  be  considered  by  the  jury,  it  is  error  to  direct  a  verdict. 
The  rule  has  been  stated  in  various  forms  of  expression,  as 
will  be  seen  by  an  examination  of  the  cases.  In  Way  v. 
Illinois  Central  R'y  Co.,  35  Iowa,  585,  the  following  langu- 
age is  employed:  "Hence,  under  the  statute,  and  our  pre- 
vious rulings,  it  follows  that  it  is  the  duty  of  a  nisi  priiis 
court  in  this  state  to  submit  the  case  to  the  jury  upon  the 
evidence  where  it  only  tends  even  to  prove  it,  although  the 
court  should  feel  in  duty  bound  to  set  aside  a  verdict  for 
the  plaintiff  if  the  jury  should  so  find."  It  is  further  said 
in  that  case  that  "in  other  states  a  different,  and  perhaps 
better  and  more  consistent  rule  obtains  whereby  the  court 
may  direct  the  jury  how  to  find,  where  it  would  set  aside 
a  verdict  otherwise."  Citing  Broivn  v.  R'y  Co.,  58  Me.  389; 
Wilds  V.  Hudson  River  R'y  Co.,  24  N.  Y.  430.  In  other 
cases  the  statement  of  the  rule  has  been  modified,  as  in 
Starry  v.  Dubuque  &  S.  W.  R'y  Co.,  51  Iowa,  419,  in  which 
the  district  court  directed  a  verdict  for  the  defendant,  this 
court  said:  "Such  being  the  case,  it  would  have  been  the 
duty  of  the  court  to  set  aside  a  verdict  in  favor  of  the 
plaintiff.  Why,  then,  occupy  the  valuable  time  of  the  court 
at  the  public  expense  for  the  purpose  of  going  through 
a  useless  form  and  ceremony?"  Language  to  the  same  ef- 
fect will  be  found  in  the  case  of  Botliwell  v.  C.  M.  (&  St.  P. 
R'y  Co.,  59  Iowa,  192.  After  a  thorough  examination  of  ad- 
judged cases,  we  have  reached  the  conclusion  that  the  prac- 
tice should  be  changed  so  as  to  harmonize  with  that  "better 
and  more  consistent  rule"  referred  to  in  Way  v.  R'y  Co., 


340  Tkial  Peactice  [Chap.  10 

supra,  which  now  obtains  in  England  and  in  the  United 
States  courts,  and  in  nearly  all  the  states  of  the  Union. 

The  doctrine  in  England  on  this  question  is  well  stated  in 
the  following  language:  "But  there  is  in  every  case  a  pre- 
liminary question,  which  is  one  of  law,  namely,  whether 
there  is  any  e\^dence  on  which  the  jury  could  properly  find 
the  verdict  for  the  party  on  whom  the  onus  of  proof  lies.  If 
there  is  not,  the  judge  ought  to  withdraw  the  question  from 
tlie  jury,  and  direct  a  nonsuit  if  the  onus  is  on  the  plain- 
tiff, or  direct  a  verdict  for  the  plaintiff  if  the  onus  is  on  the 
defendant.  It  was  formerly  considered  necessary  in  all 
cases  to  leave  the  question  to  the  jury  if  there  was  any 
evidence,  even  a  scintilla,  in  support  of  the  case,  but  it  is 
now  settled  that  the  question  for  the  judge  (subject,  of 
course,  to  review)  is,  as  is  stated  by  Maule.  J.,  in  Jewell  v. 
Parr,  13  C.  B.  916,  'not  whether  there  is  literally  no  evi- 
dence, but  whether  there  is  none  that  ought  reasonably  to 
satisfy  the  jury  that  the  fact  sought  to  be  proved  is  es- 
tablished.' "  Ryder  v.  Womhivell,  L.  R.  4  Exch.  32;  The  Di- 
rectors, etc.,  of  the  Metropolitan  R'y  Co.  v.  Jackson,  L.  R. 
3  App.  Cas.  193;  The  Directors,  etc.,  of  the  Dublin,  W.  S  W. 
R'y  Co.  v.  Slatterly  Id.  1155. 

The  rule,  as  stated  by  the  supreme  court  of  the  United 
States,  is  as  follows:  "The  judges  are  no  longer  required 
to  submit  a  case  to  a  jury  merely  because  some  evidence 
has  been  introduced  by  the  party  having  the  burden  of 
proof,  unless  the  evidence  be  of  such  a  character  that  it 
would  tear  rant  the  jury  to  proceed  in  finding  a  verdict  in 
favor  of  the  party  introducing  such  evidence.  Decided 
cases  may  be  found  where  it  is  held  that,  if  there  is  a 
scintilla  of  evidence  in  support  of  a  case,  the  judge  is 
bound  to  leave  it  to  the  jury;  but  the  modern  decisions  have 
established  a  more  reasonable  rule,  to-wit:  that  before  the 
evidence  is  left  to  the  jury  there  is  or  may  be  in  every  case 
a  preliminary  question  for  the  judge,  not  whether  there 
is  literally  no  evidence,  but  whether  there  is  any  upon  which 
a  jury  can  properly  proceed  to  find  a  verdict  for  the  party 
producing  it  upon  whom  the  burden  of  proof  is  imposed." 
Commissioners  v.  Clark,  94  U.  S.  278.  See  also.  Improve- 
ment Co.  v.  Munson,  14  Wall.  448;  Pleasants  v.  Fant,  12 
Wall.  120;  Parks  v.  Ross,  11  How.  373;  Merchants  Bank  v. 
State  Bank,  10  Wall.  637;  Hickman  v.  Jones,  9  Wal).  201. 


Sec.  3]       Dismissal,  Non-Suit,  Directed  Verdict  341 

In  Pleasants  v.  Fant,  supra,  the  following  language  is 
used:  '*It  is  the  duty  of  the  court,  in  its  relation  to  the 
jury,  to  protect  parties  from  unjust  verdicts  arising  from 
ignorance  of  the  rules  of  law  and  of  evidence,  from  im- 
pulse of  i^assion  or  prejudice,  or  from  any  other  violation 
of  his  lawful  rights  in  the  conduct  of  a  trial.  This  is  done 
by  making  plain  to  them  the  issues  they  are  to  try;  by 
admitting  only  such  evidence  as  is  proper  in  these  issues, 
and  rejecting  all  else;  by  instructing  them  in  the  rules  of 
law  by  which  that  eivdence  is  to  be  examined  and  applied; 
and  finally,  when  necessary,  by  setting  aside  a  verdict  which 
is  unsupported  by  evidence,  or  contrary  to  law.  In  the 
discharge  of  this  duty  it  is  the  province  of  the  court,  either 
before  or  after  verdict,  to  decide  whether  the  plaintiff  has 
given  evidence  sufficient  to  support  or  justify  a  verdict  in 
his  favor ;  not  whether  on  all  the  evidence  the  joreponderat- 
ing  weight  is  in  his  favor;  that  is  the  business  of  the  jury. 
But  conceding  to  all  the  evidence  offered  the  greatest  pro- 
bative force  which,  according  to  the  law  of  evidence,  it  is 
fairly  entitled  to,  is  it  sufficient  to  justify  a  verdict?  If  it 
does  not,  then  it  is  the  duty  of  the  court,  after  a  verdict, 
to  set  it  aside,  and  grant  a  new  trial.  Must  the  court  go 
through  the  idle  ceremony,  in  such  a  case,  of  submitting  to 
the  jury  the  testimony  on  which  the  plaintiff  relies  when  it 
is  clear  to  the  judicial  mind  that,  if  the  jury  should  find  a 
verdict  in  favor  of  jDlaintiff,  that  verdict  would  be  set  aside, 
and  a  new  trial  had?  Such  a  proposition  is  absurd,  and 
accordingly  we  hold  the  true  principle  to  be  that,  if  the 
court  is  satisfied  that,  conceding  all  the  inferences  which 
the  jury  could  justifyably  draw  from  the  testimony,  the 
evidence  is  insufficient  to  warrant  a  verdict  for  the  plain- 
tiff, the  court  should  say  so  to  the  jury."  The  same  doc- 
trine may  be  found  in  the  following  cases:  Rahy  v.  Cell,  85 
Pa.  St.  80,  in  which  it  is  said  that  "at  one  time,  indeed,  it 
was  the  admitted  doctrine  that,  if  there  was  any,  the  least 
evidence, — a  mere  scintilla, —  the  question  must  be  submit- 
ted to  the  jury.  But  that  doctrine  has  been  very  justly  ex- 
ploded both  in  England  and  in  this  state."  Wittkowsky  v. 
Wasson,  71  N.  C.  451;  Zettler  v.  City  of  Atlanta,  QQ  Ga. 
195;  Weis  v.  City  of  Madison,  75  Ind.  241;  Dryden  v.  Brit- 
ton,  19  Wis.  31;  Baldiuin  v.  Shannon,  43  N.  J.  Law,  596. 
Brown  v.  R'y  Co.,  58  Me.  384,  in  which  it  is  said:  "It  would 


342  TIBIAL  Practice  [Chap.  10 

be  absurd  to  send  a  cause  to  a  jury  when  the  verdict,  if  ren- 
dered in  favor  of  the  plaintiff,  would  not  be  permitted  to 
stand.  Wilds  v.  Hudson  River  R\j  Co.,  24  N.  Y.  430,  in 
which  it  is  said:  "No  legal  principle  compels  him  (the 
judge)  to  allow  a  jury  to  render  a  merely  idle  verdict." 
Brown  v.  Massachusetts  M.  S  L.  Insurance  Co.,  59  N.  H. 
298;  Brooks  v.  Somerville,  106  Mass.  271;  Ensminger  v. 
Mclntire,  23  Cal.  593;  Morgan  v,  Durfee,  69  Mo.  469;  Sim- 
mons V.  Chicago  S  T.R'y  Co.,  110  111.  340.  We  might  cite 
other  adjudged  cases  to  the  same  effect,  but  it  is  unneces- 
sary. It  will  be  seen  from  what  we  have  cited  that  the 
whole  turn  of  legal  thought  in  this  country  and  in  England 
is  contrary  to  the  rule  of  practice  which  requires  a  court 
to  go  on  for  several  days  with  the  trial  of  a  case  to  a  jury 
when  the  verdict  must  in  the  end  be  either  for  the  defend- 
ant, or  be  set  aside  if  for  the  plaintiff.  It  is  true  there 
are  decisions  to  be  found  in  a  few  states  in  which  a  scin- 
tilla of  evidence  is  allowed  to  go  to  the  jury.  But  an  ex- 
amination of  the  later  cases  in  some  of  these  states  will 
show  that  the  rule  has  not  been  adhered  to.  We  have  cited 
enough  cases  to  show  that  the  great  weight  of  modern  au- 
thority is  contrary  to  the  rule  which  this  court  has  adhered 
to,  though  it  has  more  than  once  intimated  that  the  other 
rule  adopted  by  the  large  majority  of  courts  of  last  resort 
is  better  and  more  consistent. 

Our  conclusion  is  that  when  a  motion  is  made  to  direct 
a  verdict,  the  trial  judge  should  sustain  the  motion  when, 
considering  all  of  the  evidence,  it  clearly  appears  to  him 
that  it  would  be  his  duty  to  set  aside  a  verdict  if  found 
in  favor  of  the  party  upon  whom  the  burden  of  proof 
rests.  The  adoi)tion  of  this  rule  is  no  abridgment  of  the 
right  of  trial  by  jury.  A  party  against  whom  a  verdict  has 
been  directed  by  the  court  can  have  the  ruling  of  the  court 
reviewed  by  exception  and  appeal  just  as  well  as  he  can  if 
the  rule  were  otherwise,  and  he  takes  an  appeal  to  this 
court  from  an  order  granting  a  new  trial  after  verdict.  He 
has  no  right  to  insist  that  the  trial  of  his  cause  be  continued 
as  a  mere  idle  form,  or  a  mere  experiment,  that  he  may 
have  the  gratification  of  securing  a  verdict  which  must  be 
sot  aside.  As  wo  have  soon,  courts  very  generally  now 
designate  sudi  a  |)i-ocooding  as  absurd.  Probably  this  court 
has  too  huig  folhnvod  the  rule  to  be  in  a  position  to  de- 


Sec.  3]      Dismissal,  Non-Suit,  Directed  Verdict  343 

nounce  it  in  that  way;  but  we  think  that,  as  the  question 
involves  no  more  than  the  change  of  a  mere  rule  of  practice, 
which  will  be  of  material  advantage  in  the  trial  of  cases  in 
the  saving  of  the  time  of  the  trial  courts, — time  which 
ought  to  be  devoted  to  the  transaction  of  legitimate  busi- 
ness,— and  the  saving  of  court  expenses  to  the  counties, 
with  no  detriment  to  the  rights  of  any  one,  it  is  high  time 
that  this  state  should  adopt  the  more  consistent  and  logical 
practice  which  now  generally  prevails  elsewhere. 
The  judgment  of  the  district  court  is  affirmed. 


McDonald  v.  metropolitan  street  railway 

COMPANY. 

Court  of  Appeals  of  New  York.    1901, 
167  New  York,  66. 

Maetin",  J. 

This  action  was  for  personal  injuries  resulting  in  death 
of  the  plaintiff's  intestate,  and  was  based  upon  the  al- 
leged negligence  of  the  defendant.  An  appeal  was  allowed 
to  this  court  upon  the  ground  of  an  existing  conflict  in 
the  decisions  of  different  departments  of  the  Appellate 
Division  as  to  when  a  verdict  may  be  directed  where  there 
is  an  issue  of  fact,  and  because  in  this  case  an  erroneous 
principle  was  asserted  which,  if  allowed  to  pass  uncor- 
rected, would  be  likely  ''to  introduce  confusion  into  the 
body  of  the  law."  {Sciolina  v.  Erie  Preserving  Co.,  151  N. 
Y.  50.)  The  court  having  directed  a  verdict,  the  appel- 
lant is  entitled  to  the  most  favorable  inferences  deducible 
from  the  evidence,  and  all  disputed  facts  are  to  be  treated 
as  established  in  her  favor.  {Laid  v.  Aetna  Ins.  Co.,  147 
N.  Y.  478,  482 ;  Higgins  v.  Eagleton,  155  N.  Y.  466 ;  Ten 
Eyck  V.  Whitbeck,  156  N.  Y.  341,  349;  Bank  of  Mononga- 
Jiela  Valley  v.  Weston,  159  N.  Y.  201,  208.) 

If  believed,  the  testimony  of  the  plaintiff's  witnesses  was 
sufficient  to  justify  the  jury  in  finding  the  defendant  negli- 
gent and  the  plaintiff's  intestate  free  from  contributory 
negligence.   -The  evidence  of  the  defendant  was  in  many 


344  Trial  Pkactice  [Chap.  10 

respects  in  direct  conflict,  and  if  credited  would  have  sus- 
tained a  verdict  in  its  favor.  Whether  the  defendant  was 
negligent,  the  plaintiff's  intestate  free  from  contributory 
negligence,  and  the  amount  of  damages,  were  submitted  to 
the  jury.  It,  however,  having  agreed  upon  a  general  ver- 
dict and  failed  to  answer  the  questions  submitted,  the  trial 
judge  withdrew  them  and  directed  a  verdict  for  the  defend- 
ant. Upon  the  verdict  so  directed  a  judgment  was  entered. 
Subsequently  an  appeal  was  taken  to  the  Appellate  Divi- 
sion, where  it  was  affirmed,  and  the  plaintiff  has  now  ap- 
pealed to  this  court. 

Although  there  was  a  direct  and  somewhat  severe  con- 
flict in  the  evidence,  the  questions  of  negligence  and  con- 
tributory negligence  were  clearly  of  fact,  and  were  for  the 
jury  and  not  for  the  court  unless  the  right  of  trial  by 
jury  is  to  be  partially  if  not  wholly  abolished.  It  was 
assumed  below  that  the  plaintiff's  evidence  established  a 
case  which,  undisputed,  was  sufficient  to  warrant  a  verdict 
in  her  favor.  But  the  court  said  that  at  the  close  of  the 
defendant's  evidence  the  plaintiff's  case  had  been  so  far 
overcome  that  a  verdict  in  her  favor  would  have  been  set 
aside  as  against  the  weight  of  evidence.  Upon  that  alleged 
condition  of  the  proof,  it  held  that  the  trial  court  might 
have  properly  submitted  the  case  to  the  jury  if  it  saw  fit, 
but  that  it  was  not  required  to  as  the  verdict  might  have 
been  thus  set  aside.  The  practical  result  of  that  decision, 
if  sustained,  is  in  every  close  case  to  vest  in  the  trial  court 
authority  to  determine  questions  of  fact,  although  the 
parties  have  a  right  to  a  jury  trial,  if  it  thinks  that  the 
weight  of  evidence  is  in  favor  of  one  and  it  directs  a  ver- 
dict in  his  favor. 

There  have  been  statements  by  courts  which  seem  to 
lend  some  justification  to  that  theory,  but  we  think  no 
such  broad  principle  has  been  intended  and  that  no  such 
rule  can  1)0  maintained  either  upon  principle  or  authority. 
The  rule  that  a  verdict  may  be  directed  whenever  the 
proof  is  such  that  a  decision  to  the  contrary  might  be  set 
aside  as  against  the  weight  of  evidence  would  be  both  un- 
certain and  delusive.  There  is  no  standard  by  which  to 
determine  whori  a  verdict  may  be  thus  set  aside.  It  de- 
pends upon  the  disci'etion  of  the  court.  The  result  of  set- 
ting aside  a  verdict  and  the  result  of  directing  one  are 


Sec.  3]      Dismissal,  Non-Suit,  Directed  Verdict  345 

widely  different  and  should  not  be  controlled  by  the  same 
conditions  or  circumstances.  In  one  case  there  is  a  re- 
trial. In  the  other  the  judgment  is  final.  One  rests  in 
discretion;  the  other  upon  legal  right.  One  involves  a 
mere  matter  of  remedy  or  procedure.  The  other  de- 
termines substantive  and  substantial  rights.  Such  a  rule 
would  have  no  just  principle  upon  which  to  rest. 

While  in  many  cases,  even  where  the  evidence  is  suffic- 
ient to  sustain  it,  a  verdict  may  be  properly  set  aside  and  a 
new  trial  ordered,  yet,  that  in  every  such  case  the  trial 
court  may,  whenever  it  sees  fit,  direct  a  verdict  and  thus 
forever  conclude  the  parties,  has  no  basis  in  the  law,  which 
confides  to  juries  and  not  to  courts  the  determination  of 
the  facts  in  this  class  of  cases. 

We  think  it  cannot  be  correctly  said  in  any  case  where  the 
right  of  trial  by  jury  exists  and  the  evidence  presents  an 
actual  issue  of  fact,  that  the  court  may  properly  direct  a 
verdict.  So  long  as  a  question  of  fact  exists,  it  is  for  the 
jury  and  not  for  the  court.  If  the  evidence  is  insufficient, 
or  if  that  which  has  been  introduced  is  conclusively  an- 
swered, so  that,  as  a  matter  of  law,  no  question  of  credi- 
bility or  issue  of  fact  remains,  then  the  question  being  one 
of  law,  it  is  the  duty  of  the  court  to  determine  it.  But 
whenever  a  plaintiff  has  established  facts  or  circumstances 
which  would  justify  a  finding  in  his  favor,  the  right  to 
have  the  issue  of  fact  determined  by  a  jury  continues,  and 
the  case  must  ultimately  be  submitted  to  it. 

The  credibility  of  witnesses,  the  effect  and  weight  of 
conflicting  and  contradictory  testimony,  are  all  questions 
of  fact  and  not  questions  of  law.  If  a  court  of  review 
having  power  to  examine  the  facts  is  dissatisfied  with  a 
verdict  because  against  the  weight  or  preponderance  of 
e\ddence,  it  may  be  set  aside,  but  a  new  trial  must  be 
granted  before  another  jury  so  that  the  issue  of  fact  may 
be  ultimately  determined  by  the  tribunal  to  which  those 
questions  are  confided.  If  there  is  no  evidence  to  sustain 
an  opposite  verdict,  a  trial  court  is  justified  in  directing 
one,  not  because  it  would  have  authority  to  set  aside  an 
opposite  one,  but  because  there  was  an  actual  defect  of 
proof,  and,  hence,  as  a  matter  of  law,  the  party  was  not 
entitled  to  recover.  {Colt  v.  Sixth  Ave.  R.  R.  Co.,  49  N.  Y. 
671;  BaglejfY.  Bowe,  105  N.  Y.  171,  179.) 


^46  Tkial  Peactice  [Chap.  10 


We  are  of  the  oiDinion  that  a  plain  issue  of  fact  was  pre- 
sented for  the  jury;  that  the  court  erred  in  directing  a 
verdict;  that  the  judgment  and  order  should  be  reversed 
and  a  new  trial  granted,  with  costs  to  abide  the  event. 

Parker,  Ch.  J.,  Bartlett,  Vann^  Cullen  and  Webner, 
J  J.,  concur ;  Gray,  J.,  dissents. 

Judgment  reversed,  etc. 


GILES  V.  GILES. 

Supreme  Judicial  Court  of  Massachusetts.    1910. 
204  Massachusetts,  383. 

Knowlton,  C.  J. — This  was  a  trial  in  the  Superior  Court 
upon  three  issues,  framed  upon  an  appeal  from  a  decree 
of  the  Probate  Court  allowing  the  will  of  Charles  E.  Giles. 
The  first  issue  presented  the  question  whether  the  will  was 
duly  executed.  The  second  raised  the  question  whether  it 
was  procured  by  the  undue  influence  of  the  petitioner.  The 
third  issue  was  as  follows:  ''Was  said  instrument  revoked 
by  the  said  Charles  E.  Giles  subsequently  to  the  date,  exe- 
cution and  publication  thereof  by  the  making,  execution 
and  publication  of  another  will  which  has  been  lost  or  de- 
stroyed, and  its  contents  cannot  be  proved  so  that  it  can 
be  propounded  for  probate?" 

Upon  the  first  issue,  after  testimony  by  the  subscribing 
witnesses  tending  to  show  that  the  will  was  properly  exe- 
cuted, it  was  admitted  in  evidence,  subject  to  the  appellant's 
exception,  and  at  the  close  of  the  testimony  the  jury  were 
directed  to  return  a  verdict  in  favor  of  the  petitioner.  To 
this  direction  the  appellants  excepted. 

Tlie  will  was  rightly  admitted  in  evidence,  and  the  testi- 
mony well  warranted  a  finding  that  it  was  duly  executed, 
ir.  indeed,  full  credence  was  given  to  the  testimony  of  these 
witnesses,  this  conclusion  followed  almost  necessarily.  It 
is  true  that  two  of  the  witnesses  had  little  definite  recollec- 
tion of  the  transaction,  apart  from  their  knowledge  that 
llieir  signatures  to  the  clause  of  attestation  were  genqine, 


Sec.  3]      Dismissal,  Non-Suit,  Directed  Verdict  347 

and  that  they  knew  from  their  signing  that  tliey  saw  the  exe- 
cution of  the  will  by  the  testator  in  the  presence  of  the 
three  witnesses.  While  the  jury,  upon  the  facts,  could  not 
have  been  expected  to  reach  any  other  conclusion  than  that 
which  was  recorded  under  the  direction  of  the  court,  the 
issue  was  one  to  be  passed  upon  by  a  jury,  which  is  the  or- 
dinary tribunal  for  the  determination  of  questions  of  fact. 
Where  a  proposition  is  only  to  be  established  by  testimony 
of  witnesses,  the  judge  cannot  properly  direct  a  jury  to  de- 
cide that  the  fact  is  proved  affirmatively  by  testimony.  It 
is  for  the  jury  to  say  whether  the  witnesses  are  entitled  to 
credit.  Merchants'  National  Bank  v.  Haverhill  Iron 
Works,  159  Mass.  158;  Commonwealth  v.  McNeese,  156 
Mass.  231;  Way  v.  Butterwortli,  106  Mass.  75;  Whitteu 
V.  Haverhill,  ante,  95.  We  know  of  no  case  in  this  Com- 
monwealth in  which  it  has  been  determined  that  a  jury  can 
be  directed  to  return  a  verdict,  upon  the  oral  testimony  of 
witnesses,  in  favor  of  a  party  who  has  the  burden  of  prov- 
ing the  facts  to  which  they  have  testified.  This  direction 
was  erroneous  and  the  exception  must  be  sustained. 

Verdict  on  the  first  issue  set  aside;  verdict  on  the  third 
issue  to  stand. ^ 

lAccord:  Haughton  v.  Aetna  Life  Ins.  Co.,  (1905)  165  Ind.  32,  73  N.  E. 
592;  Wolff  V.  Cam]  bell,  (1892)  110  Mo.  114,  19  S.  W.  622;  Anniston  Na- 
tional Bank  v.  School  Committee,  (1897)  121  N.  C.  107,  28  S.  E.  134;  Perkio- 
men  E.  E.  Co.  v.  Kremer,   (1907)  218  Pa.  St.  641,  67  Atl.  913. 

On  the  other  hand,  there  are  many  cases  to  be  found  where  a  directed  verdict 
for  the  party  having  the  burden  of  proof,  based  on  parol  evidence,  has  been 
approved.  See  Inhabitants  of  Woodstock  v.  Inhabitants  of  Canton,  (1897) 
91  Me.  62,  39  Atl.  281;  Harding  v.  Eoman  Catholic  Church,  (1906)  113  N.  Y. 
App.  Div.  685;  Israel  v.  Dav,  (1907)  41  Colo.  52,  92  Pac.  698;  Shumate  v. 
Evan,  (1906)  127  Ga.  118,  56  S.  E.  103;  Hillis  v.  First  National  Bank,  (1894) 
54  Kan.  421,  38  Pac.  565;  Murray  v.  Bush,  (1902)  29  Wash.  662,  70  Pac. 
133.  This  vrould  seem  to  be  the  only  logical  rule  in  those  jurisdictions  where 
the  doctrine  of  Meyer  v.  Houck,  {supra)  is  in  force. 


348  Tbial  Pkactice  [Chap.  10 


(b)     Effect  of  Requests  hy  Both  Parties. 

EMPIRE  STATE  CATTLE  COMPANY  V.  ATCHISON, 
TOPEKA  &  SANTA  FB  RAILWAY  COMPANY. 

MINNESOTA  AND  DAKOTA  CATTLE  COMPANY  V. 

SAME. 

Supreme  Court  of  the  United  States.    1907, 

210  United  States,  1. 

Me.  Justice  White  delivered  the  opinion  of  the  court. 

With  the  object  of  saving  them  from  destruction  by  the 
flood  which  engulfed  portions  of  Kansas  City  on  May  31 
and  the  first  week  of  June,  1903,  more  than  three  thousand 
head  of  cattle  belonging  to  the  petitioners,  which  were  in 
the  Kansas  City  stock  yards,  were  driven  and  crowded 
upon  certain  overhead  viaducts  in  those  yards.  For  about 
seven  days,  until  the  subsidence  of  the  flood,  they  were  there 
detained  and  could  not  be  properly  fed  and  watered.  Many 
of  them  died  and  the  remainder  were  greatly  lessened  in 
value.  These  actions  were  brought  by  the  petitioners  to 
recover  for  the  loss  so  sustained  upon  the  ground  that  the 
cattle  were  in  the  control  of  the  defendant  railway  company 
as  a  common  carrier,  and  that  the  loss  sustained  was  oc- 
casioned by  its  negligence. 

The  railway  company  defended  in  each  case  upon  the 
ground  that  before  the  loss  happened  it  had  delivered  the 
cattle  to  a  connecting  carrier,  but  that  if  the  cattle  were 
in  its  custody  it  was  without  fault,  and  the  damage  was 
solely  the  result  of  an  act  of  God,  that  is,  the  flood  above  re- 
ferred to. 

As  the  cases  depended  upon  substantially  similar  facts 
and  involved  identical  questions  of  law,  they  were  tried 
together,  and  at  the  close  of  the  evidence  the  trial  court  de- 
nied a  peremptory  instruction  asked  on  behalf  of  the  plain- 
tiffs, and  gave  one  asked  on  behalf  of  the  railway  company. 
135  Fed.  Rep.  135. 

While  there  was  some  contention  in  the  argument  as  to 
wliut  took  place  concerning  the  requests  for  peremptory  in- 
structions, we  think  the  bill  of  exceptions  establishes  that  at 
the  close  of  the  evidence  the  plaintiffs  requested  a  per- 


Sec.  3]      Dismissal,  Non-Suit,  Directed  Verdict  349 

emptory  instruction  in  their  favor,  and  on  its  being  refused 
duly  excepted  and  asked  a  number  of  special  instructions, 
which  were  each  in  turn  refused,  and  exceptions  were  sepa- 
rately reserved,  and  the  court  then  granted  a  request  for  a 
peremptory  instruction  in  favor  of  the  railway  company, 
to  which  the  plaintiffs  excepted. 

On  the  writs  of  error  which  were  prosecuted  from  the  Cir- 
cuit Court  of  Appeals  for  the  Eighth  Circuit  that  court 
affirmed  the  judgment  on  the  ground  that  as  both  parties 
had  asked  a  peremptory  instruction  the  facts  were  thereby 
submitted  to  the  trial  judge,  and  hence  the  only  inquiry 
open  was  whether  any  evidence  had  been  introduced  which 
tended  to  support  the  inferences  of  fact  drawn  by  the 
trial  judge  from  the  evidence.  One  of  the  members  of  the 
Circuit  Court  of  Appeals  (Circuit  Judge  Sanborn)  did 
not  concur  in  the  opinion  of  the  court,  because  he  deemed 
that  as  the  request  for  peremptory  instruction  made  on 
behalf  of  plaintiffs  was  followed  by  special  requests  seek- 
ing to  have  the  jury  determine  the  facts,  the  asking  for  a 
peremptory  instruction  did  not  amount  to  a  submission  of 
the  facts  to  the  court  so  as  to  exclude  the  right  to  have  the 
case  go  to  the  jury  in  accordance  with  the  subsequent 
special  requests.  He,  nevertheless,  concurred  in  the  judg- 
ment of  affirmance,  because,  after  examining  the  entire  case, 
he  was  of  opinion  that  prejudicial  error  had  not  been  com- 
mitted, as  the  evidence  was  insufficient  to  have  justified  the 
submission  of  the  issues  to  the  jury.     147  Fed.  Eep.  457. 

The  cases  are  here  because  of  the  allowance  of  writs  of 
certiorari.  They  present  similar  questions  of  fact  and  law, 
were  argued  together  and  are,  therefore,  embraced  in  one 
opinion.  The  scope  of  the  inquiry  before  us  needs,  at  the 
outset,  to  be  accurately  fixed.  To  do  so  requires  us  to 
consider  the  question  which  gave  rise  to  a  division  of  opin- 
ion in  the  Circuit  Court  of  Appeals.  If  it  be  that  the  re- 
quest by  both  parties  for  a  peremptory  instruction  is  to  be 
treated  as  a  submission  of  the  cause  to  the  court,  despite  the 
fact  that  the  plaintiffs  asked  special  instructions  upon  the 
effect  of  the  evidence  then,  as  said  in  Beuttell  v.  Magone, 
157  U.  S.  154,  **the  facts  having  been  thus  submitted  to  the 
court,  we  are  limited  in  reviewing  its  action,  to  a  considera- 
tion of  the  correctness  of  the  finding  on  the  law  and  must 
affirm  if  there  be  any  evidence  in  support  thereof."    If,  on 


350  Teial  Pkactice  [Chap.  10 

the  other  hand,  it  be  that,  although  the  plaintiffs  had  re- 
quested a  peremptory  instruction,  the  right  to  go  to  the 
jury  was  not  waived  in  view  of  the  other  requested  instruc- 
tions, then  our  inquiry  has  a  wider  scope,  that  is,  extends  to 
determining  whether  the  special  instructions  asked  were 
rightly  refused,  either  because  of  their  inherent  unsound- 
ness or  because,  in  any  event,  the  evidence  was  not  such  as 
would  have  justified  the  court  in  submitting  the  case  to 
the  jury.  It  was  settled  in  BeuUell  v.  Magone,  supra,  that 
where  both  parties  request  a  peremptory  instruction  and 
do  nothing  more,  they  thereby  assume  the  facts  to  be  un- 
disputed and  in  etfect  submit  to  the  trial  judge  the  deter- 
mination of  the  inferences  proper  to  be  drawn  from  them. 
But  nothing  in  that  ruling  sustains  the  view  that  a  party 
may  not  request  a  peremptory  instruction,  and  yet,  upon  the 
refusal  of  the  court  to  give  it,  insist,  by  appropriate  re- 
quests, upon  the  submission  of  the  case  to  the  jury,  where 
the  evidence  is  conflicting  or  the  inferences  to  be  drawn 
from  the  testimony  are  divergent.  To  hold  the  contrary 
would  unduly  extend  the  doctrine  of  BeuUell  v.  Magone,  by 
causing  it  to  embrace  a  case  not  within  the  ruling  in  that 
case  made.  The  distinction  between  a  case  like  the  one  be- 
fore us  and  that  which  was  under  consideration  in  BeuUell 
V.  Magone  has  been  pointed  out  in  several  recent  decisions 
of  Circuit  Courts  of  Appeals.  It  was  accurately  noted  in  an 
opinion  delivered  by  Circuit  Judge  Severns,  speaking  for 
the  Circuit  Court  of  Appeals  for  the  Sixth  Circuit  in  Mina- 
han  V.  Grand  Trunk  Ry.  Co.,  138  Fed.  Rep.  37,  41,  and  was 
also  lucidly  stated  in  the  concurring  opinion  of  Shelby, 
Circuit  Judge,  in  McCormack  v.  National  City  Bank  of 
Waco,  142  Fed.  Rep.  132,  where,  referring  to  BeuUell  v. 
Magone,  he  said  (p.  133) : 

''A  party  may  believe  that  a  certain  fact  which  is  proved 
without  conflict  or  dispute  entitles  him  to  a  verdict.  But 
there  may  be  evidence  of  other,  but  controverted  facts, 
which,  if  proved  to  the  satisfaction  of  the  jury,  entitles  him 
to  a  verdict,  regardless  of  the  evidence  on  which  he  relies  in 
the  first  place.  It  cannot  be  that  the  practice  would  not 
permit  him  to  ask  for  peremptory  instructions,  and,  if  the 
court  refuses,  to  then  ask  for  instruction  submitting  the 
otlicr  rjuestion  to  the  jury.  And  if  he  has  the  right  to  do 
tliis,  no  request  for  instructions  that  his  opponent  may  ask 


Sec.  3]      Dismissal,  Non-Suit,  Dieected  Verdict  351 

can  deprive  him  of  the  right.  There  is  nothing  in  Beuttell 
V.  Magone,  supra.,  that  conflicts  with  this  view  when  the 
announcement  of  the  court  is  applied  to  the  facts  of  the 
case  as  stated  in  the  opinion. 

"In  New  York  there  are  many  cases  showing  conformity 
to  the  practice  announced  in  Beuttell  v.  Magone,  but  they 
clearly  recognize  the  right  of  a  party  who  has  asked  for  per- 
emptory instructions  to  go  to  the  jury  on  controverted  ques- 
tions of  fact  if  he  asks  the  court  to  submit  such  questions  to 
the  jury.  Kirtz  v.  Peck,  113  N.  Y.  226;  S.  C,  21  N.  E.  130; 
Sutter  v.  Vanderveer,  122  N.  Y.  652;  S.  C,  25  N.  E.  907. 

"The  fact  that  each  party  asks  for  a  peremptory  instruc- 
tion to  find  in  his  favor  does  not  submit  the  issues  of  fact 
to  the  court  so  as  to  deprive  the  party  of  the  right  to  ask 
other  instructions,  and  to  except  to  the  refusal  to  give  them, 
nor  does  it  deprive  him  of  the  right  to  have  questions  of 
fact  submitted  to  the  jury  if  issues  are  joined  on  which  con- 
flicting evidence  has  been  offered.  Minahan  v.  G.  T.  W.  Ry. 
Co.,  (C.  C.  A.),  138  Fed.  Rep.  37." 

From  this  it  follows  that  the  action  of  the  trial  court  in 
giving  the  peremptory  instruction  to  return  a  verdict  for 
the  railway  company  cannot  be  sustained  merely  because  of 
the  request  made  by  both  parties  for  a  peremptory  instruc- 
tion in  view  of  the  special  requests  asked  on  behalf  of  the 
plaintiffs.  The  correctness,  therefore,  of  the  action  of  the 
court  in  giving  the  peremptorj^  instruction  depends,  not 
upon  the  mere  requests  which  were  made  on  that  subject, 
but  upon  whether  the  state  of  the  proof  was  such  as  to  have 
authorized  the  court,  in  the  exercise  of  a  sound  discretion, 
to  decline  to  submit  the  cause  to  the  jury.  That  is  to 
say,  the  validity  of  the  peremptory  instruction  must  de- 
pend upon  whether  the  evidence  was  so  undisputed  or  was 
of  such  a  conclusive  character  as  would  have  made  it  the 
duty  of  the  court  to  set  aside  the  verdicts  if  the  cases  had 
been  given  to  the  jury  and  verdicts  returned  in  favor  of  the 
plaintiff.  McGuire  v.  Blount,  199  U.  S.  142,  148,  and  cases 
cited;  Marande  v.  Texas  d  P.  R.  Co.,  184  U.  S.  191,  and 
cases  cited ;  Southern  Pacific  Co.  v.  Pool,  160  U.  S.  440,  and 
cases  cited. 

To  dispose  of  this  question  requires  us  to  consider  some- 
what in  detail  the  origin  of  the  controversy,  the  contracts  of 
shipment  from  which  the  controversy  arose  and  the  proof 


352  Trial  Peactice  [Chap.  10 

which  is  embodied  in  the  bill  of  exceptions  relied  on  to 
justify  the  inference  of  liability  on  the  part  of  the  railway 
company. 

*  *  *  As  we  think  the  undisputed  proof  to  which  we 
have  referred  not  only  established  the  existence  of  the 
necessity  for  the  change  of  route,  but  also,  beyond  dispute, 
demonstrated  that  there  was  an  entire  absence  of  all  negli- 
gence in  selecting  that  route,  we  are  clearly  of  opinion  that 
no  liability  was  entailed  simply  by  reason  of  the  change, 
even  if  that  change  could  in  law  be  treated  as  a  concurring 
and  proximate  cause  of  the  damages  which  subsequently 
resulted. 

Affirmed. 


WOLF  V.  CHICAGO  SIGN  PRINTING  COUP  ANY. 

Supreme  Court  of  Illinois.     1908. 
233  Illinois,  501. 

Me.  Justice  Caetweight  delivered  the  opinion  of  the 
court: 

Fred  W.  Wolf,  appellee,  brought  this  suit  in  assumpsit  in 
the  circuit  court  of  Cook  county  against  the  Chicago  Sign 
Printing  Company,  appellant,  and  his  declaration  consisted 
of  the  common  counts,  to  which  a  plea  of  the  general  issue 
was  filed.  There  was  a  jury  trial,  and  at  the  close  of  all 
the  evidence  the  defendant  moved  the  court  to  direct  a  ver- 
dict in  its  favor.  The  court  denied  the  motion  and  the  de- 
fondant  excepted.  The  plaintiff  then  moved  the  court  to 
direct  a  verdict  in  his  favor,  and  the  court  granted  the  mo- 
tion and  instructed  the  jury  to  find  the  issues  for  the  plain- 
tiff and  assess  his  damages  at  $4,000,  with  interest  thereon 
at  five  per  cent  from  August  19,  1902.  The  defendant  ex- 
cef)ted  to  the  granting  of  the  motion  and  giving  the  instruc- 
tion. A  verdict  was  returned,  in  accordance  with  the  di- 
rection of  the  court,  for  $4,716.66,  and  the  court,  after 
()V(!rruling  motions  for  a  new  trial  and  in  arrest  of  judg- 
ment, entered  judgment  on  the  verdict.      The  Branch  Ap- 


Sec.  3]      Dismissal,  Non-Suit,  Directed  Verdict  352 

pellate  Court  for  the  First  District  affirmed  the  judgment. 

The  defendant  is  a  corporation  with  a  capital  stock  of 
$5,000.  In  1902  Ernest  Salmstein  was  president  and  Albert 
H.  Ernecke  was  secretary  and  treasurer  of  the  corpora- 
tion. The  stockholders  had  considered  the  question  of  in- 
creasing the  capital  stock  from  $5,000  to  $25,000,  and  Salm- 
stein and  Ernecke  had  tried  to  induce  the  plaintiff  to  sub- 
scribe for  part  of  the  increase,  but  no  proceedings  had  been 
taken  for  such  increase.  On  August  18,  1902,  Ernecke  ob- 
tained from  plaintiff  a  check,  payable  to  the  defendant,  for 
$4,000,  and  the  proceeds  were  received  by  the  defendant 
the  next  day.  The  suit  was  for  the  money  represented  by 
the  check,  with  interest,  and  the  disputed  question  of  fact 
was  whether  the  money  was  loaned  by  plaintiff  to  defend- 
ant or  was  a  partial  payment  upon  an  agreement  to  sub- 
scribe for  $9,500  of  capital  stock  when  an  increase  should  be 
effected.  At  the  time  the  check  was  delivered  the  follow- 
ing receipt  was  left  with  the  plaintiff : 

"Chicago,  8-18,  1902. 

"Eeceived  of  Mr.  Fred  W.  Wolf  the  sum  of  four  thou- 
sand dollars  ($4,000)  account  Chicago  Sign  Printing  Co. 

A.  H.  Ernecke, 
Secy,  and  Treas.  Chicago  Sign  Printing  Co. 
"$4,000.00.  8-18,  1902. 

"The  above  amount  is  part  payment  on  stock  in  above  con- 
cern to  be  issued  shortly. 

A.  H.  Ernecke." 

The  evidence  for  the  defendant  was  that  this  entire  paper 
expressed  the  agreement  between  the  parties  and  that  it 
was  all  written  when  the  check  was  given.  The  evidence  for 
the  plaintiff  was  that  he  had  refused  to  take  any  stock,  but 
agreed  to  and  did  loan  the  money  to  the  corporation ;  that 
the  receipt  was  written,  and  that  the  recital  that  the  money 
was  part  payment  on  stock  was  added  without  his  knowl- 
edge by  Ernecke  and  the  paper  was  left  lying  on  the  plain- 
tiff's table.     *     *     * 

The  assignment  of  error  to  which  the  argument  is  de- 
voted is  that  the  court  erred  in  instructing  the  jury  to  re- 
turn a  verdict  for  the  plaintiff,  and  especially  in  directing 
an  assessment  of  interest  from  the  date  of  the  check.  In 
answer  to  the  argument  on  that  question  it  is  contended 
that  each  party  having  moved  the  court  to  direct  a  verdict 

"J,  P. 99- 


354  Trial  Practice  [Oiiap.  10 

in  favor  of  such  party,  they  waived  the  right  to  submit  any 
question  to  the  jury  and  elected  to  submit  the  case  to  the 
court  for  its  decision,  both  upon  the  law  and  the  facts. 
Section  60  of  the  Practice  act  provides  for  the  waiver  of 
a  jury  trial  and  a  trial  by  the  court  of  both  matters  of  law 
and  fact  in  case  both  parties  shall  so  agree,  and  in  the 
event  of  such  agreement  section  61  provides  for  submitting 
written  propositions  to  be  held  as  the  law  in  the  decision  of 
the  case,  and  section  82  provides  for  taking  exceptions  to 
decisions  of  the  court  either  relating  to  receiving  improper 
or  rejecting  proper  testimony  or  to  the  final  judgment  upon 
the  law  and  evidence.  There  was  no  such  waiver  of  a  jury 
trial  in  this  case,  and  if  the  right  to  a  verdict  of  the  jury 
upon  the  facts  was  waived  it  was  only  by  implication,  and 
this  court  has  not  recognized  any  waiver  of  the  kind  insisted 
upon  here. 

When  the  practice  of  demurring  to  the  evidence  fell  into 
disuse  and  that  of  making  a  motion  that  the  court  direct  a 
verdict  was  substituted,  some  difference  arose  in  the  de- 
cisions of  the  different  courts  as  to  the  nature  and  effect  of 
such  a  motion,  but  the  ground  of  the  motion  and  the  prac- 
tice have  been  thoroughly  settled  in  this  State.  The  motion 
to  direct  a  verdict  raises  only  a  question  of  law  as  to  the 
legal  sufficiency  of  the  evidence  to  sustain  a  verdict  against 
the  party  making  the  motion.  {Angus  v.  Chicago  Trust 
and  Savings  Bank,  170  111.  298 ;  RacJi'  v.  Chicago  City  Rail- 
ivay  Co.,  173  id.  289;  Marshall  v.  Grosse  Clothing  Co.,  184 
id.  421;  Martin  v.  Chicago  and  Northwestern  Railway  Co., 
194  id.  138.)  In  the  event  of  an  adverse  ruling  on  the  motion 
to  direct  a  verdict,  an  exception  preserves  the  question  of 
law  for  the  consideration  of  an  appellate  tribunal.  The 
submission  of  a  question  of  fact  to  the  jury  does  not  waive 
the  question  of  law  already  passed  upon  by  the  court  whore 
the  rights  of  the  party  have  been  properly  preserved. 
{Chicago  Union  Traction  Co.  v.  O'Donnell,  211  111.  349; 
Illinois  Central  Railroad  Co.  v.  Swift,  213  id.  307 ;  Chicago 
Teryyiinal  Transfer  Railroad  Co.  v.  Schiavone,  216  id.  275.) 
Some  courts  have  held  that  where  both  parties  ask  the  trial 
court  to  direct  the  verdict  it  amounts  to  a  request  that  the 
court  shall  find  the  facts  and  a  waiver  of  any  right  to  the 
judgment  of  the  jury  upon  controverted  questions  of  fact- 
Tho  Supreme  Court  of  the  United  States  held  to  that  doc- 


Sec.  3]      Dismissal,  Non-Suit,  Directed  Verdict  355 

trine  in  Beuttell  v.  Magone,  157  U.  S.  154,  and  saia  that  by 
making  the  motion  both  parties  affirmed  that  there  was  no 
disputed  question  of  fact  which  could  operate  to  deflect  or 
control  the  question  of  law,  and  that  this  was  necessarily  a 
request  that  the  court  find  the  facts.  That  decision  has,  of 
course,  been  followed  by  the  Circuit  Court  of  Appeals,  and 
there  is  a  formidable  list  of  cases  in  which  it  has  been  ap- 
plied by  those  courts.  In  New  York,  if  any  party  asks  the 
court  to  direct  a  verdict  and  his  motion  is  denied,  he  must 
then  ask  the  court  for  leave  to  go  to  the  jury  upon  questions 
of  fact,  and  it  is  held  that  there  is  no  question  for  the  jury 
unless  such  a  request  is  made.  Accordingly,  it  is  there  held, 
that  if  both  parties  ask  the  court  to  direct  a  verdict,  and  the 
court  grants  the  motion  of  one  party  and  the  other  makes  no 
request  to  be  allowed  to  go  to  the  jury  on  questions  of  fact 
but  acquiesces  in  the  determination  of  such  questions  by 
the  court,  he  has  waived  all  objection  to  the  mode  of  trial. 
In  Thompson  v.  Simpson,  128  N.  Y.  270,  it  is  said  that  the 
effect  of  a  request  by  each  party  for  a  direction  of  a  verdict 
in  his  favor  clothes  the  court  with  the  functions  of  a  jury, 
and  the  courts  declare  that  the  request  by  both  parties  for 
the  direction  of  a  verdict  amounts  to  the  submission  of  the 
whole  case  to  the  trial  judge,  and  his  decision  upon  the  facts 
has  the  same  effect  as  if  the  jury  had  found  a  verdict  after 
the  case  was  submitted  to  them.  [Adams  v.  Roscoe  Lumber 
Co.,  159  N.  Y.  176;  Smith  v.  Weston,  id.  194;  Clason  v. 
Baldivin,  46  N.  E.  Rep.  322;  Sigua  Iron  Co.  v.  Brown,  64 
id.  194.)  It  will  readily  be  seen  that  such  a  rule  would  not 
be  in  harmony  with  our  decisions,  and  to  say  that  a  request 
to  the  court  to  decide  a  pure  question  of  law  clothes  the 
court  with  power  to  decide  controverted  questions  of  fact 
would  be  both  illogical  and  inconsistent  with  the  nature  of 
the  motion.  Under  our  practice  a  request  to  withdraw  a 
case  from  the  jury  could  scarcely  be  converted  into  an  ap- 
plication to  the  court  to  take  the  place  of  the  jury  and  de- 
cide disputed  questions  of  fact.  After  the  court  refuses  to 
withdraw  the  case  from  the  jury  it  is  not  requisite,  in  our 
practice,  for  the  party  to  ask  the  court  to  allow  the  jury  to 
decide  it,  which  the  court  has  already  done  by  denying  the 
motion.  When  one  party  asks  the  court  to  direct  a  verdict 
in  his  favor,  the  fact  that  the  other  party  makes  a  similar 
motion  cannot  in  any  way  affect  the  rights  of  the  first  party. 


356  Teial  Practice  [Chap.  10 

If  that  were  true,  no  party  could  make  a  motion  for  a  direct- 
ed verdict  without  waiving  his  right  to  trial  by  jury  if  his 
opjoonent  chose  to  make  the  same  motion.  The  decisions 
relied  upon  to  establish  the  doctrine  that  if  both  parties  ask 
the  court  to  decide  a  question  of  law  they  each  waive  the 
right  to  trial  by  jury  of  controverted  questions  of  fact  are 
inapplicable  to  the  practice  in  this  State,  and  the  fact  that 
each  party  in  this  case  asked  the  court  to  direct  a  verdict 
did  not  amount  to  a  submission  of  controverted  questions  of 
fact  to  the  court. 

*  *  *  If  the  jury  should  believe  the  plaintiff  and  con- 
clude that  the  transaction  was  a  loan  of  the  money,  then, 
under  the  statute,  the  plaintiff  would  be  entitled  to  recover 
five  per  cent  from  the  time  the  money  was  loaned;  but  if 
the  jury  credited  the  evidence  for  the  defendant  and  con- 
cluded that  the  transaction  was  an  agreement  to  take  stock, 
there  could  be  no  recovery  of  interest  until  the  arrange- 
ment was  repudiated  by  the  plaintiff  and  a  demand  made 
for  tlie  return  of  the  money.  The  plaintiff  would  only  be 
entitled  to  interest  from  the  time  that  he  refused  to  carry 
out  the  agreement  and  take  the  stock.  The  court  was  not 
authorized  to  decide  that  disputed  question  of  fact  and  to 
direct  a  verdict  including  interest  from  the  date  of  the 
check.  The  defendant  was  entitled  to  the  verdict  of  the  jury 
on  that  question. 

The  judgments  of  the  Appellate  Court  and  Circuit  Court 
are  reversed  and  the  cause  is  remanded  to  the  Circuit 
Court. 

Reversed  and  remanded. 


(c)     When  Motion  to  he  Made. 
RAINGER  V.  BOSTON  MUTUAL  LIFE  ASSOCIATION. 

Supreme  Judicial  Court  of  Massachusetts.     1897. 

167  Massachusetts,  109. 

Contract,  upon  a  policy  of  insurance  for  $1,000,  issued  by 
tlie  defendant  on  the  life  of  Fred  S.  Eainger,  and  payable 
tu  the  plaintiff,  who  was  his  wife.     The    answer    set    up, 


Sec.  3]      Dismissal,  Non-Suit,  Directed  Veedict  357 

among  other  defences,  false  and  fraudulent  representations 
by  Eainger  in  bis  application  for  insurance.  Trial  in  the 
Superior  Court,  before  Dewey,  J.,  who  directed  the  jury  to 
return  a  verdict  for  the  defendant ;  and  the  plaintiff  alleged 
exceptions.  The  facts  material  to  the  jDoints  decided  ap- 
pear in  the  opinion. 

Morton,  J. 

The  plaintiff  further  contends  that  it  was  not  within  the 
power  of  the  judge  to  order  the  jury  to  return  a  verdict  for 
the  defendant  at  the  time  when  and  under  the  circumstances 
which  he  did.  All  that  the  exceptions  state  on  this  point 
is:  ''At  the  close  of  the  evidence  arguments  were  made  by 
counsel,  and  the  presiding  justice  charged  the  jury.  After 
the  jury  had  deliberated  upon  the  case  for  nearly  six  hours, 
they  were  called  back  into  court.  The  foreman  stated  that 
they  were  unable  to  agree,  and  the  presiding  justice  direct- 
ed the  jury  to  return  a  verdict  for  the  defendant,  to  which 
the  plaintiff  duly  excepted."  So  far  as  appears  from  the 
exceptions  this  took  place  in  open  court,  and,  if  so,  it  is 
clear  that  the  presiding  justice  had  a  right  to  call  back  the 
jury  and  direct  them  to  return  a  verdict  as  he  did.  He  did 
not  lose  his  control  over  the  jury  because  they  had  retired 
to  a  side  room,  under  his  direction,  to  deliberate  on  their 
verdict,  and  in  the  further  conduct  of  the  trial  he  could  re- 
call them  and  give  them  such  additional  directions  or  in- 
structions as  the  case  seemed  to  him  to  require.  Kidlherg 
V.  O'Donnell,  158  Mass.  405;  Merrift  v.  Neiv  York,  New 
Haven  &  Hartford  Railroad,  164  Mass.  440. 

Exceptions  overruled. 


358  Trial  Practice  [Chap.  10 


(d)    Poiver  of  Court  to  Compel  Verdict. 

CAHILL  V.  CHICAGO,  MILWAUKEE,  &  ST.  PAUL 
RAILWAY  COMPANY. 

United  States  Circuit  Court  of  Appeals,  Seventh 
Circuit.     1896. 

20  Circuit  Court  of  Appeals,  184. 

Before  Woods  and  Jenkins,  Circuit  Judges,  and  Gross 
CUP,  District  Judge. 

Woods,  Circuit  Judge.  This  is  an  action  on  the  case  for 
personal  injury  suffered  by  Maria  Cahill,  the  plaintiff  in 
error,  who,  when  attempting,  afoot,  to  cross  a  switching 
track  of  the  defendant  in  error  at  the  Union  Stock  Yards, 
in  Chicago,  was  struck  and  run  over  by  a  backing  engine, 
whereby  she  lost  both  feet,  and  suffered  other  serious  bodily 
injuries.  *  *  * 

*  *  *  The  Court  below  directed  a  verdict  for  the  de- 
fendant. *     *     * 

While  we  have  treated  the  judgment  in  this  case  as  if  it 
had  been  rendered  upon  a  verdict  of  the  jury  delivered  in 
accordance  with  the  court's  peremptory  direction,  the  fact 
is  not  literally  so.  The  record  shows  that  the  jurors,  at 
the  conclusion  of  the  charge,  refused  to  render  a  verdict 
for  the  defendant,  severally  stating  that  they  could  not 
conscientiously  do  so,  whereupon  the  court  said:  "Very 
well.  You  may  retire  to  your  room,  and  return  with  such  a 
verdict  as  you  may  find."  The  jury  accordingly  retired, 
but  were  recalled  into  court  at  a  later  hour,  and  directed 
again  to  return  a  verdict  for  the  defendant;  but,  one  juror 
still  holding  out,  counsel  for  the  plaintiff  was  permitted  to 
stipulate  of  record  that  a  judgment  of  dismissal  might  be 
entered,  to  have  the  same  force  and  effect,  and  none  other, 
than  a  verdict  for  the  defendant  under  the  direction  of  the 
court,  but  that  plaintiff  should  be  considered  as  excepting 
to  such  direction,  and  also  to  such  order  of  dismissal,  and 
tliereupon  tlie  court  ordered  such  dismissal,  and  the  plain- 
tiff thereupon  excepted  to  such  ruling.  The  stipulation 
should  not  have  been  accepted.  The  authority  and  duty  of 
a  judge  to  direct  a  verdict  foi-  one  party  or  the  other,  when, 


Sec.  3]      Dismissal^  Non-Suit,  Directed  Verdict  359 

in  his  opinion,  the  state  of  the  evidence  requires  it,  is 
beyond  dispute ;  and  it  is  not  for  jurors  to  disobey,  nor  for 
attorneys  to  object,  except  in  the  orderly  way  necessary  to 
save  the  right  to  prosecute  a  writ  of  error.  The  conduct  of 
the  juror  in  this  instance  was  in  the  highest  degree  repre- 
hensible, and  might  well  have  subjected  him,  and  any  who 
encouraged  him  to  persist  in  his  course,  to  punishment  for 
contempt.  His  conduct  was  in  violation  of  law,  subversive 
of  authority,  and  obstructive  of  the  orderly  administration 
of  justice.  In  fact,  by  his  course  he  put  in  jeopardy  the  in- 
terests which  he  assumed  to  protect,  because  it  is  only  by 
treating  the  case  as  if  the  verdict  directed  had  been  re- 
turned that  we  have  been  able  to  review  the  judgment  and 
to  order  a  new  trial.  We  deem  it  proper  to  observe  here 
that  it  is  not  essential  that  there  be  a  written  verdict  signed 
by  jurors  or  by  a  foreman,  and  we  have  no  doubt  that,  in 
cases  where  the  court  thinks  it  right  to  do  so,  it  may  an- 
nounce its  conclusion  in  the  presence  of  the  jury  and  of  the 
parties  or  their  representatives,  and  direct  the  entry  of  a 
verdict  without  asking  the  formal  assent  of  the  jury.  Until 
a  case  has  been  submitted  to  the  jury  for  its  decision  upon 
disputed  facts,  the  authority  of  the  court,  for  all  the  pur- 
poses of  the  trial,  is,  at  every  step,  necessarily  absolute; 
and  its  ruling  upon  every  proposition,  including  the  ques- 
tion whether,  upon  the  evidence,  the  case  is  one  for  the 
jury,  must  be  conclusive  until,  upon  writ  of  error,  it  shall 
be  set  aside.  That  remedy  is  provided  by  law,  and  pre- 
sumably will  be  eifective  and  adequate,  if  there  be  just 
ground  for  invoking  it.  Certainly  the  obstinacy  of  a  con- 
ceited juror  is  not  likely  to  prove  a  wholesome  substitute. 
The  judgment  is  reversed  and  the  case  remanded,  with  in- 
structions to  grant  a  new  trial. 

[Jenkins,  J.,  dissented  on  other  grounds.] 


CHAPTER  XI. 
INSTRUCTING  THE  JURY. 

Section  1,     Questions  of  Law  and  Fact. 

(a)     General  Theory  of  Division   of  Functions  Between 
Court  and  Jury. 

STATE  V.  WRIGHT. 

Supreme  Judicial  Court  of  Maine.     1863. 
53  Maine,  328. 

The  defendant  was  indicted,  tried  and  convicted  of  mur- 
der in  the  first  degree,  at  the  October  term,  1863,  Walton, 
J.,  presiding. 

The  case  came  before  this  Court  on  exceptions  which 
appear  in  the  opinion. 

Wai^ton,  J. — The  most  important  question  raised  by  the 
bill  of  exceptions  in  this  case  is  whether,  in  the  trial  of 
criminal  cases,  the  jury  may  rightfully  disregard  the  in- 
structions of  the  Court,  in  matters  of  law,  ana,  if  they  think 
the  instructions  wrong,  convict  or  acquit  contrary  to  such 
instructions.  In  other  words,  whether  they  are  the  ulti- 
mate, rightful  and  paramount  judges  of  the  law  as  well  as 
the  facts. 

Our  conclusion  is  that  such  a  doctrine  cannot  be  main- 
tained; that  it  is  contrary  to  the  fundamental  maxims  of 
the  common  law;  contrary''  to  the  uniform  practice  of  the 
highest  courts  of  judicature  in  Great  Britain,  where  our 
jury  system  originated  and  matured;  contrary  to  a  vast 
preponderance  of  judicial  authority  in  this  country;  con- 
trary to  the  spirit  and  meaning  of  the  constitution  of  the 
United  States  and  of  this  State;  contrary  to  a  fair  inter- 
pretation of  our  legislative  enactment,  authorizing  the  res- 
ervation of  qnostions  of  law  for  the  decision  of  the  law 
court,  and  the  alk)wance  of  exceptions;  contrary  to  reason 
and  fitness,  in  withdrawing  the  interpretation  of  the  laws 

360 


Sec.  1]  Instructing  the  Juby  361 

from  those  who  make  it  the  business  and  the  study  of  their 
lives  to  understand  them,  and  committing  it  to  a  class  of 
men  who,  being  drawn  from  non-professional  life  for  occa- 
sional and  temporary  service  only,  possess  no  such  qualifi- 
cations, and  whose  decisions  would  be  certain  to  be  con- 
flicting in  all  doubtful  cases,  and  would  therefore  lead  to 
endless  confusion  and  perpetual  uncertainty. 

1.  It  is  contrary  to  the  fundamental  maxims  of  the  com- 
mon law.  It  was  very  early  provided  that  the  jury  should 
not  entangle  themselves  with  questions  of  law,  but  confine 
themselves  simply  and  exclusively  to  facts.  This  rule  is 
expressed  in  the  well  known  maxim,  ad  questionem  facti 
non  respondent  judices,  ad  questionem  legis  non  respondent 
juratores.  It  is  the  office  of  the  judge  to  instruct  the  jury 
in  points  of  law — of  the  jury  to  decide  on  matter  of  fact. 
Broom's  Legal  Maxims,  77.  ''An  invaluable  principle  of 
jurisprudence,"  says  Mr.  Forsyth,  in  his  History  of  Trial 
by  Jury,  "which,  more  than  anything  else,  has  upheld  the 
character  and  maintained  the  efficiency  of  English  juries, 
as  tribunals  for  judicial  investigation  of  truth."  The 
author  says  it  is  impossible  to  uphold  the  doctrine  that  the 
jury  are  in  any  case  to  give  a  verdict  according  to  their 
own  view  of  the  law ;  that  it  is  founded  on  a  confusion  be- 
tween the  ideas  of  power  and  right.  ''The  law,"  continues 
he,  "cannot  depend  on  the  verdict  of  a  jury,  whose  office  is 
simply  to  find  the  truth  of  disputed  facts;  and  yet  such 
must  be  the  result  if  they  may  decide  contrary  to  what  the 
judge,  the  authorized  expounder  of  the  law,  lays  down  for 
their  guidance.  This  would  introduce  the  most  miserable 
uncertainty  as  to  our  rights  and  liberties,  the  misera  ser- 
vitus  of  vagum,  jus,  and  be  the  most  fatal  blow  that  could 
be  struck  at  the  existence  of  trial  by  jury."  Fors}i;h's 
History  of  Trial  by  Jury,  259,  265. 

2.  It  is  contrary  to  the  uniform  practice  of  the  highest 
Courts  of  judicature  in  England.  Mr.  Forsyth,  after  as- 
signing as  a  reason  for  the  unpopularity  and  final  disuse  of 
juries  in  Scandinavia  and  Germany,  that  they  carried  in 
their  very  constitution  the  element  of  their  own  destruction, 
in  this,  that  the  whole  judicial  power, — the  right  to  deter- 
mine the  law  as  well  as  the  fact, — was  in  their  hands,  says: 
"Far  otherwise  has  been  the  case  in  England.  Here  the  jury 
never  usurped  the  functions  of  the  judge.    They  were  orig- 


362  Tkial  Practice  [Cliap.  11 

inally  called  in  to  aid  the  court  with  information  upon  ques- 
tions of  fact,  in  order  that  the  law  might  be  properly  ap- 
plied; and  this  has  continued  to  be  their  province  to  the 
present  day.  *  *  *  Hence  it  is  that  the  English  jury  flour- 
ishes still  in  all  its  pristine  vigor,  while  what  are  improper- 
ly called  the  old  juries  of  the  continent  have  either  sunk 
into  decay  or  been  totally  abolished."  Trial  by  July,  11,  12. 
Parties  have  often  endeavored  to  appeal  from  the  court 
to  the  jury  in  matters  of  law,  especially  in  state  prosecu- 
tions for  treason  and  libel ;  but  it  is  believed  that  no  Eng- 
lish case  can  be  found  in  which  such  an  appeal  has  been 
sanctioned  by  the  court. 

In  1784  the  Dean  of  St.  Asaph  was  indicted  for  a  libel. 
Lord  Erskine  defended  him  and  insisted  that  the  jury  had 
a  right  to  pass  upon  the  whole  issue,  including  the  law  as 
well  as  the  fact.  Being  overruled  by  Mr.  Justice  Buller, 
he  moved  for  a  new  trial  for  misdirection ;  and  in  support 
of  his  motion  is  said  to  have  made  one  of  the  most  capti- 
vating arguments  ever  listened  to  in  Westminister  Hall. 
But  he  did  not  succeed.  The  judges  were  unanimously 
against  him. 

Lord  Mansfield,  in  delivering  judgment,  declared  that 
in  matters  of  law  the  judge  ought  to  direct  the  jury,  and 
the  jury  ought  to  follow  the  direction;  that  this  practice 
ought  not  to  be  shaken  by  general  theoretical  arguments  or 
popular  declamation;  that  the  jury  do  not  know  and  are 
not  presumed  to  know  the  law;  that  they  do  not  under- 
stand the  language  in  which  it  is  conceived,  or  the  meaning 
of  the  terms  in  which  it  is  expressed;  and  have  no  rule  to 
go  by  but  their  passions  and  feelings ;  that  if  they  should 
happen  to  be  right  it  would  be  by  chance  only;  that  to  bo 
free  is  to  live  under  a  government  of  law;  that  if  the  law 
is  to  be  in  every  case  what  twelve  men  who  shall  happen  to 
l)e  the  jury  shall  be  inclined  to  think,  liable  to  no  review, 
subject  to  no  control,  under  all  the  pojoular  prejudices  of 
the  day,  no  man  could  tell,  no  counsel  could  advise,  what 
the  result  would  be;  that  such  a  doctrine  was  contrary  to 
judicial  practice,  contrary  to  the  fundamental  principles 
constituting  trials  by  jury,  contrary  to  reason  and  fitness, 
and  lie  was  glad  that  he  was  not  bound  to  subscribe  to  such 
an  absurdity.    3  T.  K.,  428,  note. 


Sec.  1]  Instructing  the  Jury  363 

3.  It  is  contrary  to  a  vast  preponderance  of  judicial 
authority  in  this  country.  Before  the  revolution  the  doc- 
trine seems  to  have  met  with  some  favor.  It  was  undoubt- 
edly believed  that  in  the  then  condition  of  things  it  would 
be  safer  for  the  colonies  that  the  power  of  determining  the 
law  should  be  vested  in  the  jury  than  to  leave  it  in  the 
hands  of  the  judges.  And  even  after  the  revolution  the 
doctrine  seems  to  have  obtained  some  currency  that  in  all 
cases,  civil  as  well  as  criminal,  the  jury  had  a  right  to 
determine  the  law  as  well  as  the  facts.  In  a  case  tried  in 
the  Supreme  Court  of  the  United  States,  in  1794,  the  full 
Court  instructed  the  jury  that  they  had  a  right  *'to  deter- 
mine the  law  as  well  as  the  fact  in  controversy."  This 
was  in  a  civil  suit.    Georgia  v.  Brailsford,  3  Dall.,  4. 

But  this  mode  of  administering  justice  could  not  con- 
tinue. The  federal  courts  soon  discovered  that  however 
useful  such  a  doctrine  might  have  been  to  us  as  colonies, 
it  was  wholly  incompatible  with  our  new  and  improved 
system  of  government  under  the  federal  constitution.  It 
was  seen  that  to  concede  such  a  power  to  the  jury  would 
deprive  the  Judges  of  the  Supreme  Court  of  that  supremacy 
in  matters  of  law  which  the  constitution  had  wisely  con- 
ferred upon  them. 

In  a  case  before  Mr.  Justice  Baldwin,  of  the  Supreme 
Court  of  the  United  States,  a  man  by  the  name  of  Shive  was 
tried  for  counterfeiting  notes  of  the  United  States  Bank. 
His  counsel  gravely  argued  to  the  jury  that  they  ought  to 
acquit  his  client  on  the  ground  that  the  act  chartering  the 
bank  was  unconstitutional  and  void,  and  that  to  counter- 
feit the  bills  of  such  an  institution  was  no  crime.  True,  he 
said,  the  Supreme  Court  of  the  United  States  had  decided 
otherwise,  and,  as  it  was  composed  of  very  respectable 
gentlemen,  he  would  not  deny  that  their  opinion  was  en. 
titled  to  some  consideration ;  but  he  contended  that,  never- 
theless, it  was  the  right  and  the  duty  of  the  jury  to  revise 
the  decision,  and  if  in  their  judgment  it  was  wrong  to  dis- 
regard it. 

Judge  Baldwin  at  once  saw  the  absurdity  of  such  a  doc- 
trine. ''Should  you  assume  and  exercise  this  power,"  said 
he,  in  his  charge  to  the  jury,  ''your  opinion  does  not  be- 
come a  supreme  law;  no  one  is  bound  by  it;  other  juries 
will  decide  for  themselves,  and  you  could  not  expect  that 


364  Trial  Practice  [Chap.  11 

courts  would  look  to  your  verdict  for  the  construction  of 
the  constitution  as  to  the  acts  of  the  legislative  or  judicial 
departments  of  the  government;  nor  that  you  have  the 
power  of  declaring  what  the  law  is,  what  acts  are  criminal, 
what  are  innocent,  as  a  rule  of  action  for  your  fellow  citi- 
zens or  the  court.  If  juries  once  exercise  this  power  we 
are  without  a  constitution  or  laws.  One  jury  has  the  same 
power  as  another.  You  cannot  bind  those  who  may  take 
your  places.  What  you  declare  constitutional  to-day  an- 
other may  declare  unconstitutional  to-morrow.  We  shall 
cease  to  have  a  government  of  law  when  what  is  the  law 
depends  on  the  arbitrary  and  fluctuating  opinions  of  judges 
and  jurors,  instead  of  the  standard  of  the  constitution,  ex- 
pounded by  the  tribunal  to  which  has  been  referred  all 
eases  arising  under  the  constitution,  laws  and  treaties  of 
the  United  States."  United  States  v.  Shive,  1  Bald.,  512. 
In  United  States  v.  Battiste,  2  Sum.,  243,  Judge  Story 
charged  the  jury  that  it  was  their  duty  to  follow  the  law  as 
it  was  laid  down  by  the  Court.  '^I  deny,"  said  he,  "that 
in  any  case,  civil  or  criminal,  they  have  the  moral  right  to 
decide  the  law  according  to  their  own  notions  or  pleasure. 
On  the  contrary,  I  hold  it  a  most  sacred  constitutional 
right  of  every  party  accused  of  a  crime  tliat  the  jury 
should  respond  as  to  the  facts,  and  the  Court  as  to  the 
law.  It  is  the  duty  of  the  Court  to  instruct  the  jury  as  to 
the  law,  and  it  is  the  duty  of  the  jury  to  follow  the  law  as 
it  is  laid  down  by  the  Court." 

4.  It  is  unconstitutional.  The  constitution  of  the  United 
States  confers  upon  tlie  Judges  of  the  Supreme  Court  the 
power  to  adjudicate  and  finally  determine  all  questions  of 
law  properly  brouglit  before  them.  To  allow  juries  to  re- 
vise, and,  if  they  think  proper,  overrule  these  adjudica- 
tions, would  deprive  them  of  their  final  and  authoritative 
character,  and  tliiis  destroy  the  constitutional  functions  of 
the  Court. 

The  Supreme  Court  of  the  United  States  and  of  this 
State  have  decided  that  prohibitory  liquor  laws,  like  the 
one  now  in  force  in  this  State,  are  constitutional.  Is  it 
witiiiii  the  legitimate  power  of  eacli  successive  jury  im- 
pannelled  to  try  a  liquor  case,  to  reconsider  that  question, 
and,   if  they  think  proper,  overrule  those  decisions?     Is 


Sec.  1]  Instructing  the  Jury  365 

each  successive  jury  impannelled  to  try  a  person  charged 
with  counterfeiting  our  national  currency,  to  be  told  that 
they  may  rightfully  disregard  the  decisions  of  the  Supreme 
Court  of  the  United  States  and  the  rulings  of  the  presiding 
Judge,  if  they,  in  the  exercise  of  their  own  judgment,  think 
them  wrong,  and  acquit  the  defendant  upon  the  ground  that 
the  Act  of  Congress  authorizing  our  national  banks  is  un- 
constitutional? Every  intelligent  mind  must  perceive  that 
it  is  impossible  to  maintain  such  a  doctrine. 

Law  should  be  certain.  It  is  the  rule  by  which  we  are 
to  govern  our  conduct.  To  enable  us  to  do  so  we  must 
know  what  the  law  is.  Doubtful  points  ought  therefore  to 
be  settled,  not  for  the  purpose  of  a  single  trial  only,  but 
finally  and  definitely.  If  each  successive  jury  may  decide 
the  law  for  itself,  how  will  doubtful  points  ever  become 
settled?  They  will  be  bound  by  no  precedents.  They  may  not 
only  disregard  the  instructions  of  the  presiding  Judge,  and 
the  verdicts  of  all  former  juries,  but  they  may  also  disre- 
gard the  decisions  of  the  law  court.  They  will  be  authorized 
to  construe  statutes,  declare  the  meaning  of  teclmieal  terms, 
and  pass  upon  the  constitutionality  of  legislative  and  con- 
gressional enactments,  and  acquit  or  convict  according  to 
their  own  view  of  the  law.  In  doubtful  cases — cases  where 
authoritative  expositions  of  the  law  are  most  needed — we 
should  undoubtedly  have  conflicting  verdicts,  and  the  law 
would  remain  in  perpetual  uncertainty. 

Difficult  and  important  questions  of  law  arise  in  criminal 
as  well  as  civil  suits.  There  is  scarcely  an  Act  of  Congress, 
or  of  our  State  Legislature,  the  construction,  interpreta- 
tion or  validity  of  which  may  not  be  brought  in  question  in 
a  criminal  prosecution.  Technical  terms  are  to  be  ex- 
plained, conflicting  provisions  reconciled,  their  prospective 
or  retrospective  operations  ascertained,  their  effect  to  re- 
peal or  restore  former  statutes  considered,  and  their  .con- 
stitutionality determined.  To  do  this  often  requires  much 
time,  careful  thought,  the  examination  of  numerous  au- 
thorities, and  a  familiarity  with  the  law  as  a  science  whicii 
a  lifetime  ot  preparatory  study  is  scarcely  sufficient  to 
supply. 

Juries  are  generally  composed  of  upright  men,  willing 
and_  anxious  to  discharge  their  duty  to  the  best  of  their 
ability.     But  they  are  drawn  froyn.  non-professional  life. 


366  Teial  Practice  [Cliap.  11 

and  lack  the  advantage  of  a  legal  education.  When  a  cause 
is  finally  committed  to  them  they  are  put  under  duress  of 
an  officer,  and  are  not  allowed  to  separate  till  their  con- 
sideration of  the  case  is  closed.  They  are  not  allowed  the 
use  of  books,  not  even  the  statutes  which  they  may  be  re- 
quired to  construe.  Twelve  men  thus  situated  may  be  ad- 
mirably qualified  to  weigh  evidence  and  determine  facts, 
and  may  be  justly  entitled  to  all  the  encomiums  passed 
upon  them  in  that  respect;  but  it  is  impossible  to  believe 
they  constitute  a  suitable  tribunal  for  the  determination  of 
important  and  intricate  questions  of  law. 

^'The  founders  of  our  constitution,"  said  Chief  Justice 
Shaw,  (5  Gray,  235,)  "understood,  what  every  reflecting 
man  must  understand,  from  the  nature  of  the  law,  in  its 
fundamental  principles,  and  in  its  comprehensive  details, 
that  it  is  a  science,  requiring  a  long  course  of  preparatory 
training,  of  profound  study  and  active  practice,  to  be  ex- 
pected of  no  one  who  has  not  dedicated  his  life  to  its  pur- 
suit; they  well  understood  that  no  safe  system  of  juris- 
prudence could  be  established,  that  no  judiciary  depart- 
ment of  government  could  be  constituted  without  bringing 
into  its  service  jurists  thus  trained  and  qualified.  The 
judiciary  department  was  intended  to  be  permanent  and 
co-extensive  with  the  other  departments  of  government, 
and,  as  far  as  practicable,  independent  of  them ;  and  there- 
fore, it  is  not  competent  for  the  Legislature  to  take  the 
power  of  deciding  the  law  from  this  judiciary  department, 
and  vest  it  in  other  bodies  of  men,  juries,  occasionally  and 
temporarily  called  to  attend  courts,  for  the  performance 
of  very  important  duties  indeed,  but  duties  very  different 
from  those  of  judges,  and  requiring  different  qualifica- 
tions." 

Origin  of  the  doctrine.  The  doctrine  that  the  jury  are 
judges  of  the  law  in  criminal  cases  originated  in  a  contro- 
versy in  relation  to  the  law  of  libel.  The  doctrine  of  im- 
plied malice,  which,  when  applied  to  homicides,  lias  been 
resisted  by  some  of  the  best  judicial  minds  in  this  country 
and  in  England,  was  exceedingly  distasteful  to  the  defend- 
ants, when  applied  to  libels.  The  Judges,  (in  England,) 
formerly  lield  tliat  the  cliaracter  of  the  publication,— that 
is,  whether  it  was  or  was  not  libellous,  was  to  be  deter- 


Sec.  1]  Instructing  the  Jury  367 

mined  by  the  Court;  and,  if  the  Court  declared  it  to  be 
libellous,  then  malice  was  implied  and  need  not  be  proved; 
and,  what  was  still  more  objectionable,  the  Judges  were  in 
the  habit  of  directing  the  jury  to  return  a  verdict  of  guilty 
upon  proof  of  publication  and  the  truth  of  the  innuendos, 
without  telling  the  jury  whether  the  paper  was  or  was  not 
a  libel,  and  without  permitting  the  jury  to  determine  that 
question  for  themselves ;  and  then  putting  the  defendant  to 
the  trouble  and  expense  of  moving  in  arrest  of  judgment,  or 
suing  out  a  writ  of  error,  if  he  thought  the  publication 
innocent.    Thus,  in  the  trial  of  the  Dean  of  St.  Asaph,  for 
publishing  a  very  harmless  pamphlet,  entitled  a  dialogue 
between  a  gentleman  and  a  farmer,  written  by  Sir  William 
Jones,  Mr.  Justice  Buller  told  the  jury  that  it  was  no  part 
of  their  duty  to  form  any  opinion  as  to  the  character  of 
the  i)amplilet,  or  the  motives  of  the  defendant  in  publish- 
ing it,  and  did  not  himself  express  any  opinion  upon  these 
points;  and,  after  long  and  vexatious  litigation,  judgment 
was  finally  arrested,  because  not  a  single  sentence  in  the 
whole  pamphlet  could  be  pointed  out  that  was  libellous.  If 
the  Judge  had  told  the  jury  that  the  pamphlet  was  not 
libellous,  or  had  allowed  them  to  determine  that  question 
for  themselves,  or  had  allowed  them  to  pass  upon  the  ques- 
tion of  malice,  the  defendant  would  have  been  acquitted  at 
the  trial.    This  manner  of  trying  libel  suits  led  to  a  contro- 
versy in  relation  to  the  law  of  libel,  which  lasted  for  more 
than  half  a  century  in  England ;  and  finally  resulted  in  an 
Act  of  Parliament,  known  in  history  as  "Fox's  Libel  Act," 
declaring  the  right  of  the  jury  to  pass  upon  the  whole 
issue,  and  the  duty  of  the  Court  to  give  their  opinion  and 
direction  to  the  jury,  as  in  other  criminal  cases.    But  this 
Act  has  never  been  construed  in  England  as  giving  the  jury 
the  right  to  determine  the  law,  even  in  libel  suits.     "The 
judge  is  the  judge  of  the  law  in  libel  as  in  all  other  cases," 
said  the  Court  in  Rex  v.  Burdett,  4  Barn.  &  Aid.,  131.  It  was 
passed  to  correct  the  practice  of  requiring  the  jury  to  re- 
turn a  general  verdict  of  guilty  without  the  sanction  of 
the  judge's  opinion  that  it  was  one  warranted  by  law. 

In  the  course  of  this  controversy  the  argument  was  in- 
vented and  urged  with  great  plausibility  by  Lord  Erskine, 
that,  in  all  cases  tried  under  the  general  issue,  the  jury  had 
a  right  to  determine  the  law  as  well  as  the  facts.    But  tnis 


368  Tkial  Pkactice  [Chap.  11 

doctrine  never  met  with  favor  in  England.  The  principal 
ground  relied  upon  was,  not  that  the  jury  were  judges  of 
the  law,  but  that  the  malicious  intent  with  which  a  libel  is 
always  charged  to  have  been  made,  is  a  question  of  fact 
and  not  a  question  of  law;  and  the  judges  were  charged 
with  invading  the  province  of  the  jury,  not  in  withholding 
from  them  the  decision  of  questions  of  law,  but  in  with- 
holding from  them  the  decision  of  a  question  of  fact;  and 
it  was  upon  this  ground  that  the  advocates  of  the  right  of 
the  jury  to  pass  upon  the  whole  issue  in  libel  suits,  and  to 
have  the  opinion  of  the  Court  whether  the  facts,  if  proved, 
would  or  would  not  warrant  a  verdict  of  guilty,  finally 
triumphed. 

In  this  country  the  right  of  the  jury  to  pass  upon  the 
whole  issue  in  prosecutions   for  libel  is   universally   ad- 
mitted.   In  this  and  many  other  States  it  is  secured  by  con- 
stitutional provisions.     In  many  of  the  constitutions  it  is 
provided  that  the  jury  may  do  this  ''under  the  direction 
of  the  Court,"  or  "after  having  received  the  direction  of 
the  Court."    The  latter  is  the  form  of  expression  in  tliis 
State.    Upon  these  and  similar  provisions  the  question  has 
been  frequently  raised,  whether  the  jury  are  bound  to  fol- 
low the  directions  of  the  Court  in  matters  of  law,  or  are  at 
liberty  to  disregard  them,  and  determine  the  law  for  them- 
selves.    "Upon   this   point,"    asys    Mr.    Greenleaf,    "the 
decisions  are  not  entirely  uniform ;  and  some  of  them  are 
not  perfectly  clear  from  the  want  of  discriminating  between 
the  power  possessed  by  the  jury  to  find  a  general  verdict, 
contrary  to  the  direction  of  the  Court  in  a  matter  of  law, 
without  being  accountable  for  so  doing,  and  their  right 
so  to  do,  without  a  violation  of  their  oath  and  duty.    But 
the  weight  of  opinion  is  vastly  against  the  right  of  the  jury 
in  any  case,  to  disregard  the  law  as  stated  to  them  by  the 
Court;  and.  on  the  contrary,  is  in  favor  of  their  duty  to  be 
governed  by  such  rules  as  the  Court  may  declare  to  be  the 
law  of  the  land;  the  meaning  of  the  constitutional  pro- 
visions being  merely  this,  that  the  jury  are  the  sole  judges 
of  all  the  facts  involved  in  the  issue,  and  of  the  application 
of  the  law  to  the  particular  case."    3  Green].,  Ev.,  sec.  179. 

We  thus  see  that  the  doctrine  that  the  jury  are  judges 
of  the  law  as  well  as  the  facts  in  criminal  cases,  is  con- 
trary to  the  fundamental  principles  of  the  common  law, 


Sec.  1]  Insteucting  the  Juey  369 

contrary  to  a  vast  preponderance  of  judicial  authority,  con- 
trary to  reason  and  fitness ;  and,  if  allowed  to  prevail,  will 
destroy  the  constitutional  functions  of  the  judicial  depart- 
ment of  the  government.  Whether  under  the  provisions  of 
our  State  constitution  they  may  do  so  in  prosecutions  for 
libel,  we  express  no  opinion ;  but  in  all  other  criminal  pros- 
ecutions we  have  no  hesitation  in  saying  it  is  the  duty  of 
the  jury  to  be  governed  by  the  law  as  it  is  laid  down  by  the 
court.  We  fully  concur  in  the  opinion  expressed  by  Chief 
Justice  Shaw,  (5  Gray,  198,)  that,  ''the  true  glory  and  ex- 
cellence of  trial  by  jury  is  this :  that  the  power  of  deciding 
fact  and  law  is  wisely  divided;  that  the  authority  to  decide 
questions  of  law  is  placed  in  a  body  well  qualified,  by  a 
suitable  course  of  training,  to  decide  all  questions  of  law; 
and  another  body,  well  qualified  for  the  duty,  is  charged 
with  deciding  all  questions  of  fact,  definitively;  and  whilst 
each,  within  its  own  sphere,  performs  the  duty  entrusted 
to  it,  such  a  trial  affords  the  best  possible  security  for  a 
safe  administration  of  justice  and  the  security  of  public 

and  private  rights." 

********** 

Exceptions  overruled. 
Judgment  on  the   verdict. 
Appleton,   C.  J.,  Cutting,  Kext,  Dickeesox,  Baekows 
and  Danfoeth,  J.  J.,  concurred. 


(b)     Questions  of  Law  Not  to  he  Submitted  to  the  Jury. 

AARON  V.  MISSOURI  AND  KANSAS  TELEPHONE 

COMPANY. 

Supreme  Court  of  Kansas.     1911. 

84  Kansas,  117. 

The  opinion  of  the  court  was  delivered  by 

Johnston,  C.  J.:  The  appellees,  Michael  Aaron  and 
Jeanette  Aaron,  recovered  a  judgment  for  $10,000  against 
the  appellant,  the  ^Missouri  and  Kansas  Telephone  Com- 
pany, for  the  violation  of  its  duty  to  their  son,  Walter, 
T.  p.— 24 


370  Trial  Practice  [Chap.  11 

through  which  he  lost  his  life.  The  action  was  brought 
against  the  appellant  and  the  Delaware  Mutual  Telephone 
Company,  of  Lansing,  but  before  the  case  was  submitted 
to  the  jury  the  Delaware  Mutual  Telephone  Company  was 
dismissed  from  the  case.  In  the  petition  it  was  alleged 
that  Walter  Aaron  was  an  employee  of  the  Delaware  com- 
pany, which,  under  contract  with  appellant,  had  two  wires 
upon  the  poles  of  appellant,  and  that  it  was  the  duty  of 
appellant  to  have  proper  poles  and  maintain  them  in  a  safe 
condition  for  its  own  operatives  as  well  as  those  of  the 
Delaware  company  who  found  it  necessary  to  climb  and 
work  upon  them;  that  appellant  had  planted  new  poles 
along  the  line  and  had  removed  its  own  wires  from  the  old 
and  attached  them  to  the  new  poles;  that  Walter  Aaron 
came  along  afterward  and  was  transferring  the  two  wires 
of  the  Delaware  company  from  the  old  to  the  new  poles, 
and  that  when  he  had  climbed  an  old  pole  for  that  purpose 
and  had  stripped  the  wires  from  that  pole,  to  which  he  was 
strapped,  it  broke  and  fell,  crushing  and  killing  him.  *  *  * 


The  testimony  included  two  written  contracts  between 
appellant  and  the  Delaware  company  relating  to  an  inter- 
change of  business,  the  connections  to  be  made,  the  use  of 
telephones  and  switchboards,  the  maintenance  of  lines,  the 
placing  of  the  wires  of  one  on  the  poles  of  the  other  and  fix- 
ing the  compensation  for  such  use,  a  provision  releasing  one 
from  loss  or  damage  caused  by  wires  or  fixtures,  and  con- 
taining other  stipulations  as  to  the  duties  of  each  company 
and  its  obligations  to  the  other. 

In  submitting  the  case  to  the  jury  the  court  instructed 
"that  if  you  believe  from  the  evidence  in  this  case  that  it 
was  the  duty  of  the  Missouri  and  Kansas  Telephone  Com- 
pany, under  a  contract  with  the  Delaware  Mutual  Tele- 
phone Company,  to  maintain  the  line  of  poles  in  question, 
including  the  particular  pole  in  question,  in  a  reasonably 
safe  condition  for  the  linemen  of  the  Delaware  Mutual 
Telephone  Company  to  climb  and  operate  upon;  that  it 
failed  so  to  do,  and  because  thereof  the  death  of  Walter 
Aaron  was  caused,  without  fault  on  his  part,  then  I  instruct 
you  sliall  find  for  the  plaintiffs,"  etc.  *  *   * 

The  duty  of  appellant  to  the  Delaware  company  in  re- 
spoct  to  the  maintenance  of  the  poles,  including  the  one 


Sec.  1]  Instructing  the  Jury  371 

which  fell,  depended  mainly  npon  the  terms  of  the  con- 
tracts between  these  companies.  The  contracts  were  in 
writing,  and  their  meaning  and  effect  w^ere  questions  of 
law,  exclusively  within  the  province  of  the  court.  To  send 
the  jury  to  a  written  contract  to  find  the  respective  duties 
and  obligations  of  the  contracting  parties  was  to  leave  the 
jury  to  decide  the  law  as  well  as  the  facts.  It  was  the 
province  of  the  jury  to  determine  all  questions  of  fact  in- 
volved in  the  case,  after  the  court  had  advised  them  as  to 
the  governing  rules  of  law  and  instructed  them  how  to 
apply  those  rules  to  the  facts  brought  out  in  the  testimony. 
To  impose  on  the  jury  the  task  of  interpreting  a  contract 
and  of  determining  the  duty  and  responsibility  of  appellant 
under  the  contract  is  to  require  them  to  perform  a  function 
which  belongs  to  the  court  alone — a  duty  which  it  can  not 
surrender  or  evade.  In  Belil  v.  Keepers,  37  Kan.  64,  it  was 
ruled  that  "when  a  written  instrument  is  admitted  in  evi- 
dence, it  then  becomes  the  duty  of  the  court  to  construe 
and  determine  its  legal  effect,  the  relation  of  the  parties 
thereto,  and  to  include  such  determination  in  the  instruc- 
tions to  the  jurv."  (Syl.  Par.  2;  see,  also,  Broivn  v.  Trust 
Co.,  71  Kan.  134.) 

The  duty  of  appellant  to  one  employed  by  and  working 
for  another  company  is  not  only  a  matter  of  law,  but  it  is 
one  of  vital  consequence  in  the  action.  The  instruction  was 
little  less  objectionable  than  would  have  been  one  that  if 
the  jury  believed  the  appellant  was  responsible  for  the  in- 
jury and  death  the  plaintiffs  were  entitled  to  recover.  The 
instructions  required  the  jury  to  cover  the  entire  field,  in- 
cluding the  province  of  the  court,  and  left  them  to  deter- 
mine both  the  law  and  the  facts.  It  has  been  held  that  the 
failure  of  the  court  to  define  the  issues  in  a  case  and  state 
them  to  the  jury  is  error,  and  likewise  it  has  been  decided 
that  to  send  the  jury  to  the  pleadings  to  learn  the  issues 
or  contentions  of  the  parties  is  reversible  error.  (Railroad 
Co.  V.  Eagan,  64  Kan.  421;  Stevens  v.  Maxwell,  65  Kan. 
835;  Railroad  Co.  v.  Dalton,  66  Kan.  799.)  The  duty  of 
the  court  to  define  to  the  jury  the  issues  made  by  the  plead- 
ings is  no  more  imperative  than  to  determine  the  questions 
of  law  arising  in  the  case  and  to  state  them  to  the  jury.  It  is 
in  fact  a  greater  departure  from  good  practice  to  leave  the 
jury  to  interpret  written  contracts  and  determine  their 


372  Teial  Practice  [Chap.  11 

effect  on  the  relations  and  obligations  of  the  parties  than 
to  leave  them  to  ascertain  the  effect  of  the  pleadings  or  the 
issues  which  they  present. 

For  the  error  of  the  court  in  submitting  the  case  to  the 
jury  the  case  is  reversed  and  the  cause  remanded  for  a  new 
trial. 


BAKER  V.  SUMMERS. 

Supreme  Court  of  Illinois.     1903. 

201  Illinois,  52. 

Mr.  Justice  Cartwright  delivered  the  opinion  of  the 
court. 

The  second  instruction  told  the  jury  that  they  should  find 
the  issues  for  the  plaintiff  if  she  had  establish-ed,  by  a  pre- 
ponderance of  the  evidence,  the  material  allegations  of  any 
of  the  counts  in  the  amended  declaration.  There  was  no 
instruction  telling  the  jury  what  the  material  allegations  of 
the  several  counts  were,  and  what  were  the  material  allega- 
tions was  a  matter  of  law  for  the  court.  Although  it  is  a 
practice  not  to  be  commended  for  the  'Court  to  refer  the 
jury  to  the  declaration  for  the  issues,  it  has  not  been  con- 
sidered error  to  make  such  reference  where  the  instruction 
requires  proof  of  the  averments  of  the  declaration.  The 
proper  method  is  for  the  court  to  inform  the  jury,  by  tiie 
instructions,  in  a  clear  and  concise  manner,  as  to  what  ma- 
terial facts  must  be  found  to  authorize  a  recovery.  The 
averments  in  the  declaration  which  would  be  clear  to  a 
lawyer  would  often  be  obscure  and  unintelligible  to  the 
average  juryman.  (Moshier  v.  Kitchell,  87  111.  18.)  Where 
the  jury  are  not  only  referred  to  the  declaration  to  deter- 
mine the  issues,  but  are  instructed  to  find  a  verdict  for  the 
plaintiff  if  the  material  allegations  of  the  declaration  are 
proved,  they  are  left  to  decide,  as  a  matter  of  law,  what 
are  the  material  allegations,  and  might  conclude  that  some 
allegation  essential  and  material  in  the  law  was  not  ma- 


Sec.  1]  Instructing  the  Jury  373 

terial  or  necessai^y  to  be  proved  to  justify  a  recovery;  and 
such  an  instruction  as  this  was  liehl  to  be  undoubtedly 
erroneous  in  Toledo,  St.  Louis  and  Kansas  City  Railroad 

V.  Bailey,  145  111.  159. 

********** 

The  judgments  of  the  Appellate  and  Circuit  Courts  are 
reversed  and  the  cause  is  remanded  to  the  Circuit  Court. 

Reversed  and  remanded. 


ATCHISON,  TOPEKA  AND  SANTA  FE  RAILWAY 
COMPANY  V.  WOODSON. 

Supreme  Court  of  Kansas.    1909. 
79  Kansas,  567. 

[Arthur  Woodson,  on  June  27,  1905,  while  a  passenger 
on  one  of  defendant's  trains,  got  into  an  altercation  with 
a  Pullman  porter,  in  the  course  of  which  Woodson  stabbed 
the  porter,  under  circumstances  not  clearly  disclosed.  Soon 
afterwards  the  conductor  of  the  train  arrested  Woodson, 
put  him.  off  the  train  at  Ottawa  and  had  him  locked  up  in 
the  county  jail.  Subsequently  Woodson  was  tried  for  the 
assault  and  acquitted.  This  action  was  brought  for  false 
imprisonment.]^ 

The  opinion  of  the  court  was  delivered  by 

Graves,  J.:  The  arrest  and  detention  of  the  plaintiff, 
prior  to  July  1,  1905,  was  without  a  complaint  or  warrant. 
Wlien  the  arrest  >eomplained  of  was  made  the  plaintiff  was 
not  engaged  in  the  commission  of  any  offense  whatever. 
He  was  quietly  seated  in  a  chair,  like  other  passengers. 

The  defendant  interposed  the  defense  that  the  conductor, 
when  the  arrest  was  made  by  him,  had  probable  cause  to 
believe  that  a  felony  had  been  committed,  and  this  belief, 
if  honestly  and  in  good  faith  entertained,  justified  the  ar- 
rest, whether  the  felony  had  been  committed  or  not.  As 
indicated  by  this  issue,  the  pivotal  question  in  the  case  was 
whether  this  alleged  probable  cause  existed  or  not.  This 
question  could  not  be  intelligently  determined  by  the  jury 
unless  they  understood  what  in  law  constitutes  probable 

iStatement  of  facts  condensed  by  the  editor. 


374  Trial  Practice  [Chap.  11 

cause.  It  was  the  duty  of  the  court  to  define  this  phrase 
clearly,  so  that  the  evidence  could  be  easily  applied  to  such 
definition  by  the  jury.  The  only  instruction  given  by  the 
court  upon  this  question,  reads : 

'*If  the  plaintiff  was  a  passenger  on  one  of  the  passenger 
trains  of  the  defendant  company,  and  the  conductor  of  said 
train  arrested  the  plaintiff  and  removed  him  from  said 
train  at  Ottawa,  a  station  on  said  road,  or  removed  plain- 
tiff from  the  train  and  then  caused  his  arrest  and  imprison- 
ment, the  defendant  company  would  be  liable  for  said  ar- 
rest and  imprisonment  if  said  arrest  and  imprisonment  was 
false ;  that  is,  wrongfully  made  under  the  circumstances  of 
the  case." 

Wlien  is  an  arrest  legally  false  or  wrongfun  When  may 
a  conductor  on  a  passenger-train,  without  a  warrant,  right- 
fully imprison  a  passenger  while  such  passenger  is  'Con- 
ducting himself  in  a  quiet  and  orderly  manner  and  there 
are  no  reasonable  grounds  to  apprehend  misconduct  on  his 
part?  The  answer  given  by  the  law  to  the  last  question  is : 
\Vhen  the  conductor  has  probable  cause  for  believing  that 
the  passenger  has  committed  a  felony,  and  acts  in  good 
faith  upon  such  belief.  What  in  a  legal  sense  constitutes 
probable  cause.  What  is  a  felony?  These  questions  in- 
volve both  law  and  fact,  and  are  vital  to  the  issue  presented 
in  this  case.  The  jury  are  not  supposed  to  know  the  law, 
and  they  should  be  clearly  advised  by  the  court  as  to  the 
law  which  governs  the  case  on  trial.  This  was  not  done, 
but  the  law  and  the  fact  were  both  submitted  to  the  jury  for 
their  determination.  ***** 

Because  of  the  erroneous  and  misleading  character  of  the 
instructions  given,  *  *  *  *  the  judgment  of  the  district 
court  is  reversed,  with  directions  to  grant  a  new  trial  and 
proceed  in  accordance  with  the  views  herein  expressed. 


Sec.  1]  Instkucting  the  Jury  375 


MITCHELL  V.  TOWN  OF  FOND  DU  LAC. 

Supreme  Court  of  Illinois.    1871. 
61  Illinois,  174. 

Mr.  Justice  McAllister  delivered  the  opinion  of  the 
court. 

This  was  assumpsit,  brought  by  appellant  as  adminis- 
trator of  the  estate  of  William  Mitchell,  deceased,  against 
appellee,  to  recover  for  the  support  and  maintenance  by  the 
intestate  in  his  lifetime  of  one  Eliza  McFerren,  from  the 
23d  of  March,  1857,  to  the  23d  of  January,  1858,  said  Eliza 
being  an  alleged  pauper  and  resident  of  the  said  township. 

The  first  instruction  on  behalf  of  appellee  is  as  follows : 

"If  the  jury  believe,  from  the  evidence,  that  the  person, 
Eliza  McFerren,  was  boarded  and  lodged  and  furnished 
with  clothing  by  William  Mitchell  (whose  administrator 
brings  suit)  from  the  1st  day  of  March,  A.  D.  1857,  until 
his  death  in  1858,  yet,  unless  they  further  believe,  from  the 
evidence,  that  during  that  time  the  said  Eliza  McFerren 
was  a  pauper  for  whose  support  the  defendant  was  legally 
liable,  or  for  whose  support  the  defendant  had,  by  its  proper 
officer,  contracted  to  pay  the  said  William  Mitchell  for  dur- 
ing said  time,  they  will  find  for  the  defendant." 

This  instruction  submits  to  the  determination  of  the  jury 
two  questions  of  law,  without  an}'  aid  from  the  court,  viz. : 

First — What  shall  constitute  the  legal  liability  of  a  town 
to  support  a  pauper? 

Second — Wlio  is  the  proper  officer  to  make  a  binding  con- 
tract on  the  part  of  the  town  for  such  support  by  another  ? 

The  impropriety  of  leaving  questions  of  law  to  the  deter- 
mination of  the  jury  has  been  so  often  decided  by  the  courts 
that  the  citation  of  authorities  seems  unnecessary. 

The  court  should  have  instructed  the  jury  as  to  what 
facts  were  indispensable  to  create  the  legal  liability  of  the 
town  for  the  support  of  the  person  in  question,  and  then 
told  them  that  if  such  facts  were  not  established  by  the  evi- 
dence, to  find  for  the  defendant;  and  should  likewise  have 
informed  the  jury  who  the  proper  officer  to  bind  the  town 
for  such  support  was,  and  what  would  be  necessarv  to  con- 


376  Trial  Peactice  [Chap.  11 

stitute  a  contract  express  or  implied,  and  then  left  it  for 
them  to  say  whether  such  officer  acted  in  the  premises,  and 
if  he  did  nothing  to  create  a  contract  within  the  definition 
given,  that  then  they  should  find  for  the  defendant.  A 
majority  of  the  court  think  the  instruction  erroneous. 

For  this  error,  the  judgment  of  the  court  below  must  be 
reversed  and  the  cause  remanded. 

Judgment  reversed. 


WTNCHELL  V.  TOWN  OF  CAMTLLUS. 

Appellate  Division  of  the  Supreme  Court  of  New 
York.     1905. 

109  New  York  Appellate  Division,  341. 

Williams,  J. : 

The  judgment  and  order  should  be  reversed  upon  ques- 
tions of  law  only  and  a  new  trial  granted,  with  costs  to  the 
appellant  to  abide  event. 

The  action  is  to  recover  damages  for  negligence  in  per- 
mitting a  sluiceway  across  a  highway  under  the  traveled 
part  thereof  to  become  filled  up  so  as  to  set  back  surface 
water  accustomed  to  flow  through  the  same  upon  the  plain- 
tiff's premises. 


In  1890  the  Highway  Law  (Chap.  568)  was  passed,  and 
by  section  180  of  that  law  the  statute  of  1881  was  repealed 
to  take  effect  on  March  1,  1891.  (Id.  Sec.  183).  Substan- 
tially the  same  provision  was  substituted  for  it,  however, 
by  section  16  of  that  law,  Vviiich  is  as  follows:  ''Every 
town  shall  be  liable  for  all  damages  to  x>erson  or  property 
sustained  by  reason  of  any  defect  in  its  highways  or 
bridges,  existing  because  of  the  neglect  of  any  commis- 
sioner of  highways  of  such  town."  The  basis  of  the  ngat 
to  recover  is  here  plainly  stated  to  be  the  neglect  of  the 
commissioner  and  not  the  town. 

The  trial  court  read  this  section  to  the  jury,  and  then 
made  the  following  statement  to  them:     "Now,  it  is  the 


Sec.  1]  Instructing  the  Jury  377 

contention  of  the  defendant  in  this  case,  that  the  defects 
therein  referred  to  only  relate  to  the  defects  in  the  traveled 
portions  of  the  highway,  or  defects  affecting  the  traveler. 
Now,  that  contention  is  one  which  I  leave  with  you  with 
other  matters;  as  a  matter  of  fact  to  determine." 

This  statement  in  the  charge  was  excepted  to  by  the  de- 
fendant's counsel,  and  the  court  was  requested  to  charge 
that  the  defect  complained  of  in  the  case  was  not  one  con- 
templated by  section  16  of  the  Highway  Law,  but  the  court 
declined  so  to  charge. 

The  court  did  charge  that  no  recovery  could  be  had  ex- 
cept under  the  provision  of  this  section.  The  jury  evident- 
ly found  as  matter  of  fact  that  the  defect  complained  of  was 
within  the  provisions  of  this  section.  Otherwise  they  could 
not  have  rendered  a  verdict  for  the  plaintiff. 

"We  are  unable  to  perceive  how  the  legal  meaning  or 
effect  of  a  statute  can  be  a  question  of  fact  for  a  jury.  We 
had  supposed  it  was  always  a  question  of  law  for  the 
court.  There  was  no  dispute  in  this  case  as  to  what  the 
defect  was  claimed  to  be,  the  stopping  up  of  a  sluiceway 
under  the  traveled  part  of  the  highway,  and  the  damage  re- 
sulting was  not  to  a  traveler  on  the  highway,  but  to  an 
adjacent  property  owner,  the  setting  of  surface  water  back 
upon  his  land,  and  damaging  the  same. 

The  highway  was  in  no  way  obstructed  or  interfered  with 
so  far  as  travel  along  the  same  was  concerned.  The  de- 
fendant's contention  was  that  the  defects  referred  to  in  the 
statute  related  only  to  the  traveled  portion  of  the  highway 
and  affecting  the  traveler,  and  the  court  was  asked  to  con- 
strue the  statute  and  to  instruct  the  jury  as  to  its  meaning 
so  they  could  follow  those  instructions  in  considering  the 
evidence  and  deciding  the  case.  The  court  declined  to  do 
this  and  left  the  jury  to  construe  the  statute  as  a  matter 
of  fact  and  not  of  law. 

We  think  it  was  the  duty  of  the  court  to  pass  upon  ques- 
tions of  law,  and  that  it  could  not  properly  refuse  to  do  so. 
Very  likely  if  tlie  jury  decided  the  law  properly,  as  a  ques- 
tion of  fact,  the  defendant  was  not  prejudiced,  but  we  think 
they  went  wrong,  and  held  the  defendant  liable  under  this 
section,  when  it  was  not  liable  at  all. 


378  Trial  Practice  [Chap.  11 

There  was  clearly  no  legal  right  to  recover  in  this  action, 
and  it  was  erroneously  submitted  to  the  jury. 

The  motions  for  nonsuit  should  have  been  granted. 

All  concurred,  except  McLennan,  P.  J.,  who  dissented  in 
an  opinion  in  which  Spring,  J.,  concurred. 


DIDDLE  V.  CONTINENTAL  CASUALTY  COMPANY. 

Supreme  Court  of  Appeals  of  West  Virginia.    1909. 
65  West  Virginia,  170. 

POFFENBARGER,  JudgC  : 

Thomas  D.  Diddle,  insured  for  the  benefit  of  his  wife, 
Lydia  Diddle,  in  the  Continental  Casualty  Company,  for 
$2,000.00,  was  struck  by  a  railway  water  column,  while 
riding  on  a  railway  engine,  and  killed.  His  wife  brought 
this  action  on  the  policy  and  recovered  a  judgment  for  the 
sum  of  $2,049.30.  The  defense  was  predicated  on  a  limited 
liability  clause  in  the  policy,  reading  as  follows:  ''Where 
the  accident  or  injury  results  from  voluntary  exposure  to 
unnecessary  danger  or  obvious  risk  or  injury,  or  from  the 
intentional  act  of  the  Insured  or  of  any  other  per- 
son; *  *  *  *  or  (2)  where  the  accidental  injury  re- 
sults from  or  is  received  while  quarreling,  fighting  or 
violating  the  law;  *  *  *  *  then  and  in  all  cases  re- 
ferred to  in  this  Part  III,  the  amount  payable  shall 
be  one-tenth  of  the  amount  which  otherwise  would  be 
payable  under  this  policy,  anything  in  this  policy  to  the 
contrary  notwithstanding,  and  subject  otherwise  to  all  the 
conditions  in  this  policy  contained."  Deeming  this  clause 
applicable  and  controlling,  under  the  circumstances  attend- 
ing the  death  of  the  assured,  the  insurance  company  tend- 
ered the  beneficiary  $200.00,  one-tenth  of  the  amount  of  the 
policy,  less  $20.00,  due  it  on  account  of  unpaid  premium, 
which  she  refused. 

The  following  facts  are  disclosed  by  the  evidence:  The 
insured  was  a  car-repairer  in  the  shops  of  the  Chesapeake 
and  Ohio  Railway  Company  at  Pluntington.    In  the  even- 


Sec.  1]  Instructing  the  Jury  379 

ing  of  the  day  he  was  killed,  after  the  completion  of  his 
work,  he  came  out  of  the  shop,  walked  down  tlie  railway 
track  in  a  westerly  direction  a  short  distan-ce,  passing  the 
water  column,  standing  midway  between  two  railway  tracks, 
about  nine  feet  apart,  and  stepped  on  one  of  two  engines, 
drawing  a  train  of  cars  over  a  switch  from  the  west  bound 
track  to  the  east  bound  track,  as  he  had  often  done  be- 
fore. Instead  of  getting  into  the  cab  of  the  engine,  he 
stood  on  the  step  on  the  outside,  holding  to  a  hand-grip, 
while  his  body  projected  or  swung  from  the  side  of  it,  and 
was  riding  in  that  way,  or  he  was  in  the  act  of  climbing  into 
the  cab  and  before  he  had  accomplished  it,  the  engine  came 
to  the  water  column  and  his  body  came  into  violent  contact 
with  it.  *  *  *  * 


Over  the  objection  of  the  defendant,  the  court  gave  one 
instruction  for  the  plaintiff  in  which  the  jury  were  told, 
first,  that  the  boarding  of  the  engine  was  not  a  violation 
of  the  statute,  making  it  criminal  to  jump  on  or  off  of 
trains;  and,  second,  that  they  might  find  a  verdict  for  the 
jilaintiff  if  they  believed  from  the  facts,  circumstances  and 
evidence  that  the  water  tank  was  a  dangerous  obstruction, 
unless  they  should  further  believe  that  the  danger  was 
known  to  tlie  insured  and  could  have  been  reasonably  ex- 
pected by  him.  The  court  erred  in  giving  the  instruction, 
since  the  second  proposition,  involved  in  it,  submitted  to 
the  jury  a  matter  which  it  was  the  duty  of  the  court  to  pass 
upon  and  declare  as  a  matter  of  law.  Upon  the  admitted 
and  uncontroverted  facts,  disclosed  by  the  evidence,  the 
danger  and  risk  were  palpably  obvious.  The  insured  was 
bound  to  know  it.  The  law  did  not  permit  him  to  say,  nor 
the  jury  to  find,  that  he  did  not  know  it,  or  to  excuse  him 
because,  though  having  opportunity  for  deliberation  and 
voluntary  action,"  he  did  not  make  use  of  the  faculty  of 
sight,  which  would  have  revealed  to  him  the  danger  and 
the  risk.  There  was  no  basis  in  the  evidence  for  a  finding 
in  favor  of  the  plaintiff.  Under  such  circumstances,  it  is 
error  to  give  an  instruction  telling  the  jury  they  may  so 
find.  Kuyliendall  v.  Fisher,  61  W.  Va.  87,  102;  Parker  v. 
Bmlding  &  Loan  Ass'n,  55  W.  Va.  134. 

For  the  errors  aforesaid,  the  judgment  will  be  reversed, 
the  verdict  set  aside  and  the  case  remanded  for  a  new  trial. 


380  Trial  Practice  [Chap.  11 

(c)     Questions  of  Fact  Not  to  he  Taken  From  the  Jury. 

STANDAED  COTTON  MILLS  V.  CHEATHAM. 

Supreme  Court  of  Georgia.    1906, 

125  Georgia,  649. 

Beck,  J.  The  petition  of  Cheatham  contained  substan- 
tially the  following  allegations;  that  he  was  employed  by 
the  Standard  Cotton  Mills  to  work  at  certain  machines 
called  '^ carders,"  which  were  operated  by  a  belt  from  a 
pulley,  and  it  was  a  part  of  his  duty  to  clean  the  machines 
by  opening  certain  lids  thereon,  placing  his  hand  inside  of 
the  same,  and  taking  therefrom  accumulations  of  trash  and 
lint  called  "strippings."  In  order  to  clean  the  carders 
it  was  necessary  to  stop  them,  and  this  was  done  by  switch- 
ing the  belt  from  the  tight  pulley,  upon  which  it  worked,  to 
a  loose  pulley.  Plaintiff  alleges  that  he  had  stopped  the 
machines  in  the  manner  described,  and  had  opened  the  lid 
and  placed  his  hand  inside  of  one  of  the  carders,  when 
the  belt  slipped  from  the  loose  pulley  on  to  the  tight  one, 
the  machine  started,  caught  his  hand,  and  mangled  it  se- 
verely *    *    * 

Movant  also  complains  that  the  court  erred  in  chargfng 
the  jury  as  follows:  ''If  the  carder  machine  was  stopped 
by  slipping  the  belt  from  the  tight  to  the  loose  pulley,  and 
that  was  the  proper  way  to  stop  the  machine  and  keep  it 
stopped  until  the  operator  himself  slipped  the  belt  from 
the  loose  to  the  tight  pulley,  if  the  plaintiff  did  not  know 
or  ought  to  have  known  to  the  contrary,  he  would  have  the 
right  to  presume  tliat  Ihe  belt,  once  shifted  from  the  tight 
to  the  loose  pulley,  and  the  machine  thereby  stopped,  would 
remain  stopped  until  again  started.  That  I  charge  you 
as  correct  law,  gentlemen,  provided  the  defect  was  one  that 
the  plaintiff  could  not  have  discovered  by  the  exercise  of 
ordinary  diligence."  It  is  alleged  that  this  portion  of  the 
charge  was  error,  "because  it  was  a  question  for  the  jury 
to  determine  whether  the  plaintiff  would  have  the  right 
to  presume  that  the  belt  would  stay  shifted  when  once 


Sec.  1]  Instructing  the  Jury  381 

shifted,  considering  all  the  facts  before  them."  And  this 
point  seem?  to  be  well  taken.  In  charging  as  here  alleged, 
the  trial  court  went  directly  in  the  teeth  of  the  statute 
which  declares  that  it  is  error  for  a  trial  judge  to  express 
or  intimate  his  opinion  as  to  what  has  or  has  not  been 
proved  (Civil  Code,  Sec.  4334).  We  cannot  imagine  a 
more  direct  invasion  of  the  province  of  the  jury  than  for 
the  court  to  instruct  them  that  as  to  one  of  the  facts  ma- 
terial to  be  considered  by  the  jury  in  passing  upon  the 
question  as  to  whether  or  not  the  plaintiff  himself  was 
guilty  of  negligence,  "he  would  have  the  right  to  presume 
that  the  belt,  once  shifted  from  the  tight  to  the  loose  pulley, 
and  the  machine  thereby  stopped,  would  remain  stopped 
until  again  started."  This  did  not  fall  far  short  of  in- 
structing them  that  if  the  plaintiff  took  certain  precautions 
while  inserting  his  hand  into  a  dangerous  machine,  he  havl 
the  right  to  presume  that  the  precautionary  measure  so 
taken  would  be  equivalent  to  the  exercise  of  due  care  and 
caution  in  guarding  against  an  injury  that  might  be  brought 
about  by  the  machine  being  set  in  motion.  In  brief,  the 
court  attempted  to  and  did  in  one  breath  deal  with  and 
dispose  of  a  vital  question  of  fact.  If  any  presumption 
at  all  arose  as  to  what  would  be  the  effect  of  shifting  the 
belt  in  question  from  the  tight  to  the  loose  pulley,  it  was 
a  presumption  of  fact,  and  should  have  been  left  for  the 

jury's  consideration  alone,  unaided  by  the  court. 

********** 

Judgment  reversed.       All   the  Justices  concur,  except 
Fish,  C.  J.,  absent. 


ILLINOIS  CENTRAL  RAILROAD  COMPANY 
V.  JOHNSON. 

Supreme  Court  of  Illinois.      1906. 

221  Illinois,  42. 

Mr.  Chief  Justice  Cartwright  delivered  tiie  opinion  of 
the  court : 

This  is  an  action  on  the  case  brought  by  appellee,  as  ad- 


382  ,    Teial  Practice  [Chap.  11 

ministratrix  of  the  estate  of  her  son,  Carl  Eobert  George 
Johnson,  in  the  circuit  court  of  Cook  coiintv,  to  recover 
damages  from  appellant  for  causing  his  death. 

The  declaration  alleged  that  the  deceased,  who  was  a 
minor,  became  a  passenger  on  November  3,  1900,  on  one  of 
defendant's  trains,  in  the  front  car  next  tc  the  engine,  at 
West  Pullman  station,  to  be  carried  to  Pullman  station; 
that  the  train  arrived  at  Pullman  station  about  7 :45  in  the 
evening;  that  at  Pullman  station  was  an  elevated  plat- 
form between  the  tracks  for  north-boujad  and  south-bound 
trains  for  the  use  of  passengers;  feat  when  the  train 
stopped  at  Pullman  the  deceased  leit  the  car  at  the  forward 
end,  as  was  cutsomary  and  as  directed  by  defendant;  that 
the  train  and  car  had  passed  by  and  beyond  said  elevated 
platform,  and  on  leaving  the  car  deceased  found  himself 
on  the  ground  a  few  feet  north  of  the  elevated  platform 
between  said  tracks,  with  the  engine  and  cars  on  the  east 
side  and  a  vacant  space  on  the  west  and  a  high  picket  fence 
across  the  platform  on  the  south;  that  the  depot  and  exit 
were  on  the  west  west,  and  as  the  deceased  went  from  the 
place  where  he  alighted,  in  a  westerly  and  southerly  direc- 
tion, toward  the  gates,  using  due  care,  one  of  the  locomo- 
tive engines  of  the  defendant  going  in  a  southerly  direction 
on  the  south-bound  track  struck  and  killed  him.  The  plea 
was  the  general  issue,  and  upon  a  tiial  the  jury  returned 
a  verdict  finding  the  defendant  guilty  and  assessing  plain- 
tiff's damages  at  $5000.  Judgment  was  entered  on  the 
verdict,  and  the  judgment  was  affirmed  by  the  Appellat< 
Court  for  the  First  District. 


The  instruction  given  at  the  request  of  the  plaintiff  which 
purported  to  state  the  relative  duties  of  the  parties,  the 
theory  of  the  plaintiff  and  ground  for  recovery  alleged  in 
the  declaration,  and  the  amount  of  damages  which  might  be 
awarded,  was  as  follows: 

"The  jury  are  instructed,  as  a  matter  of  law,  that  if  you 
find,  from  the  evidence,  that  the  defendant  corporation  was 
engaged  in  the  business  of  transporting  passengers  and 
freight,  for  hire,  upon  a  railroad  o])erated  by  said  company, 
then  the  law  denominated  the  defendant  a  common  carrier. 
The  court  instructs  the  jury  that  common  carriers  of  per- 
sons are  required  to  do  all  that  human  care,  vigilance  and 


Sec.  1]  Instructing  the  Jury  385 

foresight  can  reasonably  do,  in  view  of  the  character  and 
mode  of  conveyance  adopted,  to  prevent  accidents  to  pas- 
sengers. So,  too,  persons  who  become  passengers  must 
at  all  times  exercise  ordinary  care  and  caution  for  their 
own  safety.  And  if  the  jury  believe,  from  the  evidence  in 
this  case,  that  the  defendant  was  at  the  time  of  the  acci- 
dent a  common  carrier,  and  if  you  further  believe,  from  the 
evidence,  that  the  deceased  was  a  pasesnger  on  the  defend- 
ant's train  and  in  the  exercise  of  due  care  on  his  part,  if 
the  jury  so  believe  from  preponderance  of  the  evidence, 
and  that  the  defendant  carelessly  or  negligently  operated 
its  said  train  or  car  by  running  the  same  past  the  station 
platform,  so  as  to  cause  the  deceased  to  alight  upon  the 
ground  and  tracks  of  the  defendant  instead  of  upon  the 
platform  where  the  passengers  are  usually  unloaded,  and 
that  by  reason  of  such  negligent  acts,  if  any  are  proven 
by  the  preponderance  of  the  evidence  in  the  case,  of  the 
defendant,  their  agents,  and  employees,  the  deceased,  Carl 
Robert  George  Johnson,  while  exercising  due  care  for  his 
safety,  if  you  so  find  from  the  preponderance  of  the  evi- 
dence, was  struck  by  an  engine  controlled  and  operated  by 
the  defendant  and  was  then  and  there  killed,  then  you  may 
find  the  defendant  guilty,  and  assess  the  plaintiff  dam- 
ages at  such  reasonable  sum  as  she  may  be  entitled  to  re- 
cover under  all  the  facts  and  circumstances  proved  in  the 
case,  not  exceeding  $5000." 

The  instruction  was  erroneous  in  three  respects.  It  was 
proved,  and  not  disputed,  that  the  train  ran  three  or  four 
feet  past  the  north  end  of  the  platform,  and  that  deceased 
alighted  upon  the  ground  instead  of  on  the  platform  where 
passengers  were  usually  unloaded.  The  questions  in  dis- 
pute were  whether  the  act  of  defendant  in  running  past  the 
platform  constituted  negligence  on  its  part,  and  whether 
such  act  caused  the  deceased  to  alight  upon  the  ground  at 
an  improper  place,  or  whether  he  was  negligent  in  going 
down  the  steps  where  he  did.  They  were  questions  of 
fact  for  the  jury  to  determine  from  the  evidence,  and  it 
was  the  exclusive  province  of  the  jury  to  determine  whether 
the  act  of  the  defendant  was  negligent  and  whether  tlie  de- 
cased  was  J^ilty  of  negligence.  No  other  act  of  the  de- 
fendant was  alleged  and  no  other  fact  stated  in  the  declar- 
ation which  could  have  been  construed  to  be  a  negligent 


884  Trial  Peactice  [Chap.  11 

one,  and  the  court  could  not  say  that  either  of  the  parties 
was  negligent  as  a  matter  of  law.      The  Appellate  Court, 
in  considering  whether  the  evidence  warranted  the  jury 
in  finding  the  defendant  guilty  of  negligence  which  caused 
the  injury,  expressed  no  opinion  as  to  whether  the  running 
of  the  train  past  the  station  platform  constituted  negli- 
gence or  not,  but  held  that  the  defendant  was  negligent 
in  the  management  of  the  south-bound  train,  saying  that  it 
was  the  duty  of  the  engineer  to  have  been  on  the  lookout 
for  the  north-bound  train;  that  he  must  have  known  his 
train  was  late;  that  he  ran  the  train  at  the  rate  of  from 
twelve  to  fifteen  miles  an  hour,  and  that  the  evidence  tended 
to  show  he  did  not  exercise  the  required  degree  of  care  in 
the  operation  of  his  train  so  as  to  be  able  to  stop  for  the 
safet}^  of  passengers  getting  on  or  off  the  north-bound 
train.       There  was  no  averment  in  the  declaration  as  to 
the  speed  of  the  south-bound  train  or  failure  to  keep  a  look- 
out, or  mismanagement  of  it  in  any  respect.      The  crossing 
place  for  passengers  was  south  of  the  platform,  more  than 
three  hundred  feet  distant,  and  where  the  train  would  have 
come  to  a  full  stop ;  and  if  the  question  as  to  the  manage- 
ment of  the  south-bound  train  had  been  submitted  to  the 
jury,  they  would  doubtless  have  considered  the  question 
whether  the  engineer  had,  or  ought  to  have  had,  any  rea- 
son to  expect  that  a  person  would  be  on  the  track  at  the 
north  end  of  the  platform.       It  appears,  however,   that 
such  questions  were  not  submitted,  and  that  the  verdict  was 
based  on  the  negligent  character  of  the  act  in  running  past 
the  platform.      On  that  question  the  instruction  assumed 
both  that  the  act  was  a  careless  and  negligent  one,  and  that 
it  caused  the  deceased  to  alight  upon  the  ground  on  the 
tracks  of  the  defendant  instead  of  upon  the  platform,  and 
it  afterwards  refers  to  the  acts  as  ''such  negligent  acts." 
The  plaintiff  was  entitled  to  recover  if  the  jury  should  de- 
cide that  the  act  of  the  defendant  was  negligent,  that  it 
caused  the  injury,  and  that  the  deceased  was  in  the  exer- 
cise of  ordinary  .care;  but  it  was  the  exclusive  province  of 
the  jury  to  determine  those  facts,  and  they  should  have 
been  submitted  to  the  jury  for  determination  without  any 
intimation  or  assumption  as  to  the  proper  conclusion.      In 
the  case  of  Chicago  and  NortJiwestern  Raihvay  Co.  v.  Mo- 
randa,  108  111.  576,  the  CQurt  said :  "Where  there  is  evidence 


Sec.  1]  Insteuctixg  the  Jury  385 

before  a  jury  upon  which  it  is  legally  admissible  there  may 
be  difference  of  opinion,  it  is  error  to  allow  any  opinion  of 
judge  or  court  to  be  obtruded  upon  the  jurors  to  influence 
their  determination."  Where  the  evidentiary  facts  will 
justify  different  conclusions  the  question  of  negligence  is 
one  of  fact,  and  instructions  should  alwaj^s  be  dra\\Ti  so  as 
to  state  th^  law  upon  a  supposed  or  hn^othetical  state  of 
facts,  leaving  the  jury  to  find  the  fact.  Instructions  as- 
suming the  existence  of  any  material  fact  have  always  been 
condemned.  {Sherman  v.  Dutch,  16  111.  283;  Michigan 
Southern  and  Northern  Indiana  Railroad  Co.  v.  Shelton, 
66  id.  424;  Chicago  and  Eastern  Illinois  Railroad  Co.  v. 
O'Connor,  119  id.  586;  Swigart  v.  Hawley,  140  id.  186;  Illi- 
nois Central  Railroad  Co.  v.  Griffin,  184  id.  9;  Allmendin- 
ger  v.  McHie,  189  id.  308;  Pittsburg,  Cincinnati,  Chicago 
and  St.  Louis  Railway  Co.  v.  Banfil,  206  id.  553.)  Under  this 
instruction,  when  the  jury  found  that  the  train  was  run 
past  the  platform,  they  would  understand  that  the  court 
regarded  such  act  to  be  a  careless  and  negligent  operation 
of  the  train,  and  that  it  caused  the  deceased  to  get  off  the 
train  at  the  place  where  he  did.  It  did  not  call  upon  the 
jury,  as  it  should  have  done,  to  decide  whether  the  act  con- 
stituted negligence  on  the  part  of  the  defendant. 

Because  of  the  material  and  prejudicial  errors  which 
have  been  pointed  out,  the  judgments  of  the  Appellate 
Court  and  circuit  court  are  reversed  and  the  cause  is  re- 
manded to  the  circuit  court. 

Reversed  and  remanded. 


BUTTRAM  V.  JACKSON. 

Supreme  Court  of  Georgia.      1860, 
32  Georgia,  409. 

The  questions  in  this  case  arise  out  of  the  following  state 
of  facts: 

Some  time  in  December  in  1857,  Ira  G.  Jackson  sold  to 
Andrew  J.  Buttram  a  mule,  and  received  in  payment  there- 
T.  p.— 25 


386  Trial  Practice  [Chap.  11 

for  two  promissory  notes,  given  by  one  D.  H.  Harris,  one 
of  the  notes  dated  10th  November,  1857,  and  due  twelve 
months  after  date,  payable  to  said  Buttram,  or  bearer,  for 
the  Slim  of  $30.00 ;  the  other  dated  22d  October,  1857,  and 
due  25th  December,  1858,  payable  to  Martha  McElreath,  or 
bearer,  for  $40.00. 

On  the  22d  January,  1859,  Jackson  instituted  suit  in 
Carroll  Superior  Court,  against  Buttram,  to  recover  the 
value  of  the  mule,  alleging,  in  one  count  of  his  declaration, 
that  Buttram,  at  the  time  of  the  trade,  warranted  the  notes 
to  be  good,  and  that  Harris  was  perfectly  solvent,  and  that 
if  the  notes  were  not  paid  by  Harris  at  their  maturity,  he, 
Buttram,  would  pay  the  amount  due  on  the  same,  whereas, 
in  truth  and  in  fact,  Harris  was  insolvent  at  the  time,  and 
afterwards  absconded,  and  went  to  parts  unknown. 

The  defendant  pleaded  the  general  issue. 

When  the  testimony  and  argument  had  closed,  the  pre- 
siding judge  charged  the  jury,  "that  if  the  defendant  told 
the  plaintiff,  at  the  time  of  trading  him  the  notes  on  Harris, 
that  he  considered  Harris  good,  but  that  he  would  not  be 
bound,  yet  he  was  bound,  if  Harris  was  not  good  at  that 
time,  if  Jackson  took  the  notes  on  such  representation,  al- 
though there  was  no  guaranty  by  defendant  to  stand  good 
for  the  notes,  the  notes  being  taken  by  Jackson,  who  was 
ignorant  of  the  condition  of  Harris  at  the  time,  whose  con- 
dition was  known  to  Buttram." 

By  the  Court. — Jenkins,  J.,  delivering  the  opinion. 

Error  was  further  assigned,  in  the  grounds  of  the  motion 
for  a  new  trial  against  the  charge  of  the  Court  as  set  forth 
in  the  statement. 

In  that  charge  the  presiding  judge  deemed  it  necessary, 
in  order  to  facilitate  the  application  of  the  law  by  the  jury 
to  the  case,  to  advert  to  certain  facts  claimed  bj^  one  party 
to  have  been  proven,  but  the  proof  of  which  was  denied  by 
the  other.  This  practice  is  not  objectionable;  indeed,  it  is 
sometimes  necessary,  to  enable  the  jury  to  understand 
clearly  the  relation  existing  between  the  law  and  the  facts 
of  the  case;  but  the  utmost  caution  should  be  observed  to 


Sec.  1]  Instructing  the  Juey  387 

guard  the  jury  against  the  inference,  that  the  judge  con- 
siders any  disputed  fact  to  have  been  proven. 

Juries  are  usually  very  open  to  influence  from  the  Bench, 
and  it  is  right  that  they  should  be  so;  but  that  influence 
should  never  be  extended  to  their  conclusions,  in  matters  of 
fact.  A  careful  analysis  of  the  charge  under  review  makes 
it  apparent  that  the  judge  put  his  reference  to  some  of  the 
facts  hypothetically,  as  ''*/  the  defendant  told  the  plain- 
tiff," etc.,  'S/  Harris  was  not  good  at  that  time,"  etc., 
whilst  his  reference  to  other  facts  was  in  terms  which  as- 
sume that  they  were  incontestably  proven,  as  ''Jackson, 
who  was  ignorant  of  the  condition  of  Harris,  at  the  time, 
and  whose  condition  ivas  Jinoivn  to  Buttram,"  etc.  The 
hypothetical  is  the  proper  form  of  putting  facts  in  such 
cases,  because  it  distinctly  puts  the  jury  on  the  inquiry  as  to 
those  facts ;  but  in  relation  to  other  facts,  put  positively  be- 
fore them,  put  as  facts  ascertained  in  the  same  connection, 
in  the  same  sentence,  they  are  much  less  apt  to  feel  the  ne- 
cessity of  inquiry.  Indeed,  these  different  modes  of  treat- 
ing different  facts,  would  seem  to  give  a  double  assurance, 
that  they  are  relieved  from  the  necessity  of  scrutinizing  the 
evidence  for  the  proof  of  some  of  them :  1st.  Because  the 
judge  has  treated  them  as  proven.  2nd.  Because  he  has 
cautiously  treated  others  as  doubtful.  We  think  there  was 
error  in  this  *    *    * 

The  judgment  of  the  Court,  therefore,  must  be  reversed 
and  a  new  trial  ordered. 

Let  the  judgment  he  reversed. 


(d)    Comments  by  the  Court  on  the  Weight  of  the 
Evidence. 

NEW  YORK  FIREMEN  INSURANCE  COMPANY 
V.  WALDEN. 

Court  for  the  Trial  of  Impeachments  and  the  Correction  of 
Errors  in  the  State  of  New  York.      1815. 

12  Johnson,  513. 

This  cause  came  up  from  the  Supreme  Court  on  a  writ  of 
error. 


388  Trial  Practice  [Chap.  11 


For  the  plaintiffs  in  error,  it  was  contended.  1.  That 
there  was  a  concealment  of  certain  letters  and  matters,  rela- 
tive to  the  conduct  and  character  of  the  master,  which  were 
material  to  the  risk,  and  ought  to  have  been  disclosed  to 
the  plaintiffs  in  error,  at  the  time  the  policy  was  under- 
written. *  *  *  2.  That  under  the  circumstances  of  -the 
case,  the  policy  did  not  protect  the  ship  against  the  barratry 
of  Cartwright,  the  master ;  and  that  there  was  not  sufficient 
evidence  of  barratry  to  entitle  the  plaintiffs  below  to  re- 
cover on  that  ground  *  *  *.  3.  That  the  materialty  of  the 
concealment  was  a  question  of  fact,  and  ought  to  have  been 
left  to  the  jury.  *    *    * 

The  Chancellor.  This  case  comes  up  upon  a  bill  of  ex- 
ceptions, and  we  are  accordingly  to  be  confined  to  the  ob- 
jections taken  at  the  trial,  and  appearing  on  the  face  of  the 
bill.  The  question  is,  whether  there  was  error  in  the 
charge  which  the  learned  judge  delivered  to  the  jury.  This 
charge  was,  ''that  the  several  matters  given  in  evidence  on 
the  part  of  the  plaintiffs,  were,  in  his  opinion,  conclusive 
evidence  of  the  barratry  of  the  master  of  the  vessel,  on  the 
voyage;  and  that  the  plaintiffs  were  not  bound  to  communi- 
cate, or  disclose,  to  the  defendants,  any  of  the  letters,  mat- 
ters, or  circumstances,  which  were,  at  the  time  of  the  insur- 
ance, in  their  possession,  relative  to  the  master;  and  tli;^ 
the  matters  given  in  evidence,  on  the  part  of  the  defend- 
ants, were  not  sufficient  to  maintain  the  issue  on  their  part, 
or; to  bar  the  action  of  the  plaintiffs;  and  that  if  the  jury 
agreed  with  him  in  opinion,  they  ought  to  find  a  verdict  for 
the  plaintiffs;"  and  with  that  charge,  he  left  the  matter  to 
the  jury. 

The  counsel  went  at  large  into  the  discussion  of  the  ques- 
tion, whether  the  assured  were  bound  to  communicate  to 
the  underwriters,  at  the  .time  they  applied  for  insurance, 
the  letters  and  other  knowledge  they  possessed  of  the  im- 
proper conduct  of  the  master.  But  it  appears  to  me  that 
this  question  is  not  for  the. decision  of  tliis  Court,  because, 
wlietlier  the  circumstances  relative  to  the  master  ought  to 
have  been  disclosed,  depends  upon  the  question,  whether 
those  circumstances  were  material  to  the  risk;  and  the  ma- 
teriality is  a  question  of  fact  for  a  jury  and  not  a  question 
of  law  for  the  Court.      It  is  a  well-settled  principle  in  the 


Sec.  1]  Instbucting  the  Jury  389 

law  of  insurance,  that  what  facts,  in  the  knowledge  of  the 
assured,  are  material,  and  necessary  to  be  commnnicated 
to  the  underwriter,  when  insurance  is  asked  for,  is  for  a 
jury  to  determine;  and  I  will  briefly  notice  a  few  cases,  in 
illustration  of  this  point.      My  whole  opinion  will  rest  upon 

the  admission  and  the  solidity  of  this  principle. 

********** 

It  is  thus  settled,  (as  far  as  authority  goes,)  beyond  all 
doubt  or  contradiction,  that,  whether  the  matters  not  dis- 
closed in  this  case  were  material,  was  a  question  that  ought 
to  have  been  submitted  to  the  consideration  and  decision  of 
the  jury;  and  here,  I  apprehend,  lies  the  error  committed 
by  the  learned  judge,  that  he  has  given  a  binding  direction 
to  the  jury,  upon  matter  of  fact,  as  if  it  had  been  matter  of 
law.  It  appears  to  me,  that  the  true  and  necessary  con- 
struction of  the  charge,  as  stated  in  the  bill,  is,  that  it  was 
a  positive  direction,  in  point  of  law,  as  to  the  materiality  of 
the  non-disclosure,  and  that  it  must  have  been  so  received 
and  obeyed  by  the  jury.  If  the  charge  had  been  intended 
as  a  mere  opinion  to  the  jury,  on  a  matter  of  fact,  on  which 
they  were  to  exercise  their  judgment,  the  jury  would,  un- 
doubtedly, have  been  told,  that  the  defence  in  the  case 
rested  upon  the  question  of  the  materiality  of  the  letters 
and  facts  not  disclosed,  and  that  it  was  for  them  to  judge, 
from  the  evidence,  whether  the  disclosure  would  have  va- 
ried the  premium,  or  increased  the  risk,  in  respect  of  the 
barratry  of  the  master;  and  that  if  the  jury  should  be  of 
opinion  that  the  facts  not  disclosed  were  in  that  sense  ma- 
terial, they  must  find  for  the  defendants;  and  that,  if 
they  thought  otherwise,  they  must  find  for  the  plaintiffs. 
This  would  have  been  the  language  of  a  charge  suited  to 
the  submission  of  such  a  point;  and  we  have  an  example 
of  this  species  of  charge  (if,  indeed,  an  example  can  be 
wanting)  in  the  bill  of  exceptions  taken  in  the  case  of 
Smith  V.  Carrington,  (4  Cranch,  64.)  If,  then,  the  judge 
had  deemed  it  proper  to  add  his  own  opinion  on  that  fact, 
for  the  assistance  or  satisfaction  of  the  jury,  it  might  have 
been  done  with  utility,  and  with  safety.  But  the  charge, 
as  stated  in  the  case,  is  not  of  this  nature,  but  it  is  in  the 
usual  style  and  language  of  a  direction  of  the  Court,  on 
matter  of  law.  The  precedent  of  a  bill  of  exceptions, 
which  was  cited  from  Buller's  N.  P.  317,  and  which  is  given 


390  Teial  Practice  [Chap.  11 

as  for  misdirection,  is  in  the  language  of  the  charge  in  this 
case.  "And  the  said  chief  justice  did  then  and  there  (says 
the  precedent)  declare  and  deliver  his  opinion  to  the  jury, 
that  the  said  several  matters  so  produced  and  proved,  on 
the  part  of  the  defendants,  were  not,  upon  the  whole  case, 
sufficient  to  bar  the  plaintiff  of  his  action;  and,  with  that 
direction,  left  the  same  to  the  jury."  There  is  a  preced- 
ent of  a  bill  of  exceptions  given  in  3  Burr.  1742.,  and  which 
was  taken  to  a  charge  on  the  subject  of  search-warrants, 
made  by  Lord  Camden,  when  Ch.  J.  of  the  C.  B.,  and  the 
language  of  this  very  authentic  precedent  is  almost  in  the 
very  words  of  the  one  before  us:  "And  the  said  chief  jus- 
tice did  then  and  there  declare  and  deliver  his  opinion  to 
the  jury,  that  the  said  several  matters  so  produced  and 
proved,  on  the  part  of  the  defendants,  were  not,  upon  the 
whole  case,  sufficient  to  bar  the  action,  and,  with  that  opin- 
ion, left  the  same  to  the  jury." 

In  this  case,  from  Burrow,  it  was  never  doubted  but  that 
the  opinion  of  the  chief  justice,  so  stated  in  that  bill,  was 
taken  and  received  as  a  direction  in  point  of  law ;  and  if  the 
charge  in  the  case  before  us  is  not  to  be  deemed  of  that 
character,  it  will  be  impossible,  hereafter,  to  discriminate 
between  a  charge  containing  a  positive  direction  in  point  of 
law,  and  mere  advice  on  a  matter  of  fact.  I  shall  not  en- 
ter into  any  minute  criticism  on  words.  No  one  who  con- 
sults the  precedents  can  well  be  at  a  loss  for  the  meaning 
of  this  charge.  The  language  of  the  learned  judge  was, 
that  the  plaintiffs  were  not  hound  or  required  to  make  the 
disclosure;  that  the  matters  offered  in  evidence  were  not 
su-fficient  to  bar  the  action,  and  nothing  was  said  about  the 
weight  of  evidence  for  the  consideration  of  the  jury.  If 
even  it  was  doubtful,  by  the  bill,  whether  the  charge  was  in- 
tended as  direction,  or  otherwise,  the  result  of  my  opinion 
would  be  the  same ;  because,  when  the  judge  interposes  his 
opinion  to  the  jury,  on  a  point  of  fact,  it  ought  not  to  be 
left  in  doubt  in  what  light  they  are  to  receive  his  charge. 
In  order  to  preserve  a  just  balance  between  the  distinct 
powers  of  the  Court  and  the  jury,  and  that  the  parties  may 
enjoy,  in  unimpaired  vigor,  their  constitutional  right  of 
having  tlie  law  decided  by  the  Court,  and  of  having  the  fact 
der-ided  by  the  jury,  every  charge  should  distinguish  clearly 
between  the  law  and  the  fact,  so  that  the  jury  cannot  misun- 


Sec.  1]  Instbucting  the  Juey  391 

derstand  their  rights  or  their  duty,  nor  mistake  the  opinion 
of  the  judge  upon  matter  of  fact,  for  his  direction  in  point 
of  law.  The  distinction  is  all  important  to  the  jury.  The 
direction  of  the  judge,  in  the  one  case,  is  obligatory  upon 
their  consciences,  and  so  they  will,  and  so  they  ought  to, 
regard  it;  but  his  opinion,  in  the  other  case,  is  mere  ad- 
vice, and  the  jury  are  bound  to  decide  for  themselves,  not- 
withstanding the  opinion  of  the  judge,  and  to  follow  that 
opinion  no  farther  than  it  corresponds  with  the  conclusions 
of  their  own  judgment.  Unless  this  distinction  be  kept  stead- 
ily in  view,  and  be  defined  with  all  possible  precision,  the 
trial  by  jury  may,  in  time,  be  broken  down,  and  rendered 
nominal  and  useless. 

I  am  far  from  wishing  to  restrain  the  judges  of  the 
Courts  of  law  from  expressing  freely  their  opinions  to  the 
jury  on  matters  of  fact,  and  still  less  from  interfering  with 
their  power  of  controlling  the  mistaken  verdicts  of  juries, 
by  a  liberal  exercise  of  the  discretion  of  awarding  new 
trials.  No  man  can  be  more  deeply  sensible  of  the  value 
and  salutary  tendency  of  this  judicial  aid  and  discretion, 
and  none,  certainly,  can  possess  higher  confidence  in  the 
character  and  wisdom  of  the  Court  whose  judgment  is  now 
under  review.  All  that  I  feel  it  my  duty  to  contend  for  is, 
that  whenever  the  judge  delivers  his  opinion  to  the  jury  on 
a  matter  of  fact,  it  shall  be  delivered  as  mere  opinion,  and 
not  as  direction,  and  that  the  jury  shall  be  left  to  under- 
stand, clearly  that  fJiei/  are  to  decide  the  fact,  upon  their 
own  view  of  the  evidence,  and  that  the  judge  interposes  his 
opinion  only  to  aid  them  in  cases  of  difficulty,  or  to  inspire 
them  with  confidence  in  cases  of  doubt.  It  is  for  this  prin- 
ciple that  I  feel  solicitous,  and  not  for  anything  that  may 
have  taken  place  in  this  particular  cause.  The  case  before 
us  is,  comparatively,  of  trifling  consequence;  but  the  dis- 
tinction I  have  suggested  goes  to  the  very  root  and  es- 
sence of  trial  by  jury,  and  may,  indeed,  become  of  ines- 
timable value,  and,  perhaps,  of  perilous  struggle,  when  the 
present  generation  shall  have  ceased  to  exist. 

I  am  disposed  to  hand  to  posterity  the  institution  of 
juries  as  perfect,  in  all  respects,  as  we  now  enjoy  it;  for  I 
believe  it  may,  in  times  hereafter,  be  found  to  be  no  incon- 
siderable security  against  the  systematic  influence  and  ty- 
ranny of  party  spirit,  in  inferior  tribunals. 


S92  Teial  Peactice  [Chap.  11 


I  am,  accordingly,  of  opinion,  that  the  judgment  of  the 
Supreme  Court  be  reversed,  and  that  the  cause  be  re- 
manded, with  directions  that  a  venire  de  novo  be  awarded. 

A  majority  of  the  Court  being  of  this  opinion,  it  was 
thereupon  ordered  and  adjudged,  that  the  judgment  of  the 
Supreme  Court  be  reversed,  and  that  a  venire  de  novo  be 
awarded,  for  the  trial  of  the  issue  joined  between  the  par- 
ties in  the  said  Court ;  and  that  the  costs  in  this  Court  abide 
the  final  decision  of  the  cause. 

Judgment  of  reversal. 


ST.  LOUIS,  lEON  MOUNTAIN  AND  SOUTHERN 
RAILWAY  V.  VICKERS. 

Supreme  Court  of  the  United  States.      1887. 

122  United  States,  360. 

The  defendant  in  error  sued  the  plaintiff  in  error  in  a 
state  court  of  Arkansas  to  recover  damages  for  personal 
injuries  sustained  by  him  while  a  passenger  on  one  of  the 
trains  of  the  company.  *    *    * 

The  case  was  tried  before  a  jury.  *  *  * 
The  assignments  of  error  were  the  following: 
1.  The  court  erred  in  instructing  the  jury  as  follows; 
*' Counsel  for  the  plaintiff  told  you  that  you  might  find  a 
verdict  for  plaintiff  for  any  sum  from  one  cent  to  $25,000. 
This  is  true  in  one  sense.  You  have  the  power  to  render 
a  verdict  for  one  cent  or  for  $25,000,  but  a  verdict  for  either 
of  these  sums  would  obviously  be  a  false  verdict,  for  if  the 
plaintiff  is  entitled  to  a  verdict  at  all,  and  upon  this  point 
you  will  probably  have  no  difficulty,  as  the  evidence  clearly 
shows  negligence  and  consequent  liability  on  the  defend- 
ant, though  this  is  a  question  of  fact  exclusively  within 
your  province  to  determine — I  say,  if  plaintiff  is  entitled  to 
a  A'crdict  at  all  he  is  entitled  to  recover  more  than  one  cent, 
and  it  is  equally  clear  that  $25,000  would  be  greatly  in  ex- 
cess of  what  he  ought  to  recover." 


Sec.  1]  Instructing  the  Juey  393 


Mk.  John  F.  Dh^lon  for  plaintiff  in  error. 

The  constitution  of  Arkansas,  Art.  VII,  Sec.  23,  provides 
that  * 'judges  shall  not  charge  juries  with  regard  to  mat- 
ters of  fact,  but  shall  declare  the  law,  and  in  jury  trials 
shall  reduce  their  charge  or  instructions  to  writing  on  the 
request  of  either  party." 

In  this  case  the  matters  of  fact  in  issue  were  the  alleged 
negligence  of  the  defendant  and  contributory  negligence 
of  the  plaintiff. 

We  submit  that  this  constitutional  provision  should  be 
followed  by  the  Federal  courts  sitting  as  courts  of  common 
law  in  the  state  of  Arkansas;  and  that  this  case  is  to  be 
distinguished  from  Nudd  v.  Burroivs,  91  U.  S.  426,  and 
Indianapolis  Railroad  v.  Horst,  93  IT.  S.  291. 

Chief  Justice  Taney,  delivering  the  opinion  of  this  court 
in  Mitchell  v.  Harmony,  13  How.  115,  said:  ''The  practice 
in  this  respect  differs  in  different  states.  In  some  of  them 
the  court  neither  sums  up  the  evidence  in  a  charge  to  the 
jury  nor  expresses  an  opinion  upon  a  question  of  fact.  Its 
charge  is  strictly  confined  to  questions  of  law,  lea\dng  the 
evidence  to  be  discussed  by  counsel,  and  the  facts  to  be  de- 
cided by  the  jury  without  commentary  or  opinion  by  the 
court.  But  in  most  of  the  states  the  practice  is  otherwise ; 
and  they  have  adopted  the  usage  of  the  English  courts  of 
justice,  where  the  judge  always  sums  uj)  the  evidence,  and 
points  out  the  conclusions  which  in  his  opinion  ought  to  be 
drawn  from  it ;  submitting  them,  however,  to  the  considera- 
tion and  judgment  of  the  jury.  It  is  not  necessary  to  in- 
quire which  of  these  modes  of  proceeding  most  conduces 
to  the  purposes  of  justice.  It  is  sufficient  to  say  that  either 
of  them  may  be  adopted  under  the  laws  of  Congress.  And 
as  it  is  desirable  that  the  practice  in  the  courts  of  the 
United  States  should  conform  as  nearly  as  practicable  to 
that  of  the  state  in  which  they  are  sitting,  that  mode  of 
proceeding  is  perhaps  to  be  preferred  which,  from  long 
established  usage  and  practice,  has  become  the  law  of  the 
courts  of  the  state." 

It  is  submitted  that  the  act  of  Congress  of  June  1,  1872, 
17  Stat.  197,  Sec.  5,  should  be  construed  in  harmony  with 
this  decision. 

It  has  been  repeatedly  held  in  Arkansas  that  it  is  error 


39i  Tbial  Pbactice  [Cbap.  11 

to  assume,  in  the  instructions  to  the  jury,  the  existence  of 
the  facts  in  issue.  Montgomery  v.  Erwin,  24  Ark.  540; 
Floyd  V.  Bids,  14  Ark.  286  (S.  C.  58  Am.  Dec.  374) ;  State 
Bank  v.  McGuire,  14  Ark.  537;  Atkins  v.  State,  16  A^k.  568, 
593;  Armistead  v.  Brooke,  18  Ark.  521;  Burr  v.  Williams, 
20  Ark.  171.  And  that  an  instruction  should  not  be  given 
which  intimates  to  the  jury  the  opinion  of  the  court  as  to 
the  weight  of  the  evidence.  BandolpJi  v.  McCains'  Admin- 
istrator, 34  Ark.  696. 

Mr.  F.  W.  Compton  for  defendant  in  error  submitted  on 
his  brief. 

Mr.  Chief  Justice  Waite  delivered  the  opinion  of  the 
court. 

This  judgment  is  affirmed  on  the  authority  of  Vickshurg 
and  Meridian  Bailroad  Co.  v.  Putnam,  118  U.  S.  545 ;  Nudd 
V.  Burrows,  91  U.  S.  426,  441;  Indianapolis  etc.  Bailroad  v. 
Horst,  93  U.  S.  291,  299.  A  state  constitution  cannot,  any 
more  than  a  state  statute,  prohibit  the  judges  of  the  courts 
of  the  United  States  from  charging  juries  with  regard  to 
matters  of  fact. 

Affirmed. 


KLEUTSCH  V.  SECURITY  MUTUAL  LIFE  INSUR- 
ANCE COMPANY. 

Supreme  Court  of  Nebraska.      1904, 

72  Nebraska,  75. 

Baknes,  J.  Augusta  0.  Kleutsch,  by  her  guardian  and 
next  friend,  and  Katherine  Kleutsch  Mills,  commenced  an 
action  in  the  district  court  for  Lancaster  County,  against 
the  Security  Mutual  Life  Insurance  Company  of  Lincoln, 
Nebraska,  on  a  policy  issued  l)y  that  company  on  the  life 
of  one  George  W.  Kleutsch,  the  plaintiffs  being  the  bene- 
ficiaries. The  case  was  first  tried  before  his  honor,  Judge 
TTolmes,  and  a  verdict  returned  in  favor  of  the  plaintiffs  for 
the  amount  named  in  the  policy.  This  verdict  was  set 
nsirlo  nnd  a  now  trial  granted,  and  from  that  order  the 
lilaiiitiffs  prosecute  error.      The  case  was  again  tried  be- 


Sec.  1]  Instructing  the  Juby  395 

fore  his  honor,  Judge  Cornish,  and  a  verdict  again  re- 
turned for  the  plaintiffs.  From  an  order  demdng  a  new 
trial  and  a  judgment  on  the  verdict,  the  defendant  prose- 
cutes error.  *    *    * 

********** 

We  come  now  to  consider  the  assignments  of  error  pre- 
sented by  the  defendant  company.  It  appears  that  on  the 
second  trial  the  court  instructed  the  jury  as  follows : 

'*In  this  case  the  burden  of  proof  is  upon  the  plaintiffs 
to  establish  by  a  preponderance  of  evidence  the  payment  of 
the  second  premium  on  the  policy  in  suit,  which  premium 
was  due  November  28, 1900,  and  on  which  a  grace  of  30  days 
in  pajTuent  was  allowed  by  the  terms  of  the  policy.  To 
prove  payment  the  plaintiffs  produced  the  defendant's  re- 
ceipt for  the  same.  A  receipt  is  evidence  of  a  high  grade, 
to  be  overcome  only  by  clear  and  convincing  testimony. 
On  the  other  hand  it  constitutes  only  prima  facie  evidence 
of  what  it  contains,  and  it  is  entirely  competent  and  proper 
for  the  defendant  company  to  show  that  the  payment  in 
fact  was  not  made,  and  that  the  receipt  was  issued  by  mis- 
take." 

Defendant  contends  that  this  instruction  was  erroneous ; 
that  it  was  wrong  in  this,  that  the  court  should  not  have 
told  the  jury  that  ''a  receipt  is  evidence  of  high  grade,  to 
be  overcome  only  by  clear  and  convincing  testimony." 
And  it  would  seem  that  by  this  statement  the  court  called 
the  attention  of  the  jury  directly  to  this  part  of  the  testi- 
mony; in  fact,  singled  it  out,  commented  on  its  character 
and  weight,  and  stated  that  it  could  only  be  overcome  by 
clear  and  convincing  evidence.  This  must  have  left  the 
impression  that  the  testimony  of  the  defendant's  witnesses, 
by  which  they  attempted  to  explain  the  existence  of  the  re- 
ceipt, how  it  came  to  be  issued,  and  in  which  they  stated 
positively  that  the  premium  which  it  represented  was  never 
paid,  was  not  e\Tdence  of  such  a  high  grade  as  the  receipt 
itself,  and  the  jury  might  therefore  well  conclude  that  the 
prima  facie  evidence  of  pa^Tnent,  to-wit,  the  receipt  itself, 
was  not  overcome  thereby.  Wliatever  may  be  the  rule  in 
other  jurisdictions,  we  have  frequently  held  that  it  was 
error  to  single  out  and  to  direct  the  attention  of  the  jury 
to  any  particular  part  of  the  evidence,  and  comment  on  its 
weight  or  probative  force.      In  Smith  v.  Gardner,  36  Neb, 


396  Tkial  Practice  [Chap.  11 

741,  the  question  involved  was,  whether  a  certain  promis- 
sory note  had  been  paid.  After  the  death  of  one  of  the 
defendants,  the  note  was  found  among  her  papers.  The 
plaintiff  testified  positively  that  the  note  had  never  been 
paid,  but  that  the  deceased  had  obtained  possession  of  it  on 
the  pretence  of  examining  it,  and  thereafter  fraudulently 
refused  to  surrender  it.  The  trial  court  gave  iJie  following 
instruction:  ''You  are  further  instructed  that  the  posses- 
sion of  the  note  by  Margaret  Green  is  a  strong  circumstance 
to  show  pa;\Tiient  unless  explained  by  the  plaintiffs  in  the 
action."  The  court,  speaking  through  Post,  J.,  held  this 
instruction  error,  and  in  commenting  thereon  said : 

''We  think  the  giving  of  the  above  instruction  was  error. 
"We  do  not  question  the  soundness  of  the  proposition  that 
possession  of  a  note  by  the  maker  thereof  after  maturity  is 
prima  facie  evidence  of  payment,  but  what  is  denominated  a 
presumption  of  payment  in  such  a  case  is  a  mere  logical 
inference  from  the  fact  of  possession,  and  may  be  strong  or 
weak,  according  to  the  circumstances  of  the  particular  case. 
*  *  *  Possession  of  the  note  by  the  deceased  at  the  time 
of  her  death  is  not  only  a  circumstance  tending  to  prove 
pajTnent,  but  from  which  payment  would  ordinarily  be  the 
logical  inference.  It  is  therefore  proper  in  such  a  case  to 
instruct  the  jury  that  possession  is  presumptive  or  prima 
facie  evidence  of  payment,  which  will,  if  uncontradicted  or 
unexplained,  warrant  a  verdict  in  favor  of  the  party  alleg- 
ing it.  But  the  force  of  such  presumption  must  always  de- 
pend upon  the  circumstances  of  the  case.  It  is  therefore 
error  to  advise  the  jury  that  possession  of  a  note  by  the 
maker  raises  a  strong  presumption  of  payment  or  is  a 
strong  circumstance  to  prove  payment." 

In  Smith  v.  Meyers,  52  Neb.  70,  which  was  an  action  for 
criminal  conversation,  the  trial  court  refused  to  instruct  the 
jury  that,  "if  you  find  from  the  evidence  that  the  plaintiff 
continued  to  live  with  his  wife  after  he  has  heard  of  her 
alleged  illicit  connection  with  the  defendant,  the  jury  is  jus- 
tified in  concluding  that  the  plaintiff  has  condoned  the  of- 
fense of  the  wife,  and  this  circumstance  is  entitled  to  great 
weight  in  considering  the  question  of  damages  the  plaintiff 
has  sustained  by  the  wrongful  conduct  of  the  defendant, 
provided  the  jury  shall  believe  that  the  defendant  has,  in 
fact,  committed  any  wrong  against  the  plaintiff." 


Sec.  1]  Instbucting  the  Jury  397 

This  was  assigned  as  error,  and  in  determining  that  ques- 
tion the  court  said: 

''This  instruction  was  properly  refused,  because  loss  of 
comfort  and  society  of  the  wife  were  not  the  only  injuries 
for  which  compensatory  damages  could  be  awarded. 
Again,  it  was  not  the  province  of  the  court  to  tell  the  jury 
what  circumstance  was  'entitled  to  great  weight.'  It  was 
for  the  jury  alone  to  determine  the  weight  to  be  given  the 

testimony." 

********** 

In  Show  V.  Locke,  3  Neb.  (Unof.)  176,  it  was  said:  "Com- 
plaint is  next  made  that  the  trial  court  should  not  have 
instructed  the  jury  as  follows :  'The  jury  are  instructed  that 
where  the  testimony  of  witnesses  is  irreconcilably  conflict- 
ing they  should  give  great  weight  to  the  surrounding  cir- 
cumstances in  determining  which  witness  is  entitled  to 
credit.'  This  is  complained  of  because  it  did  not  confine 
the  attention  of  the  jury  to  the  surrounding  circumstances 
proved  at  the  trial,  and  also  because  it  sought  to  instruct 
them  what  weight  to  attach  to  these  circumstances.  De- 
fendant in  error  replies  that  the  instruction  complained  of 
was  just  as  good  for  one  party  as  the  other  and  did  not 
prejudice  plaintiff  in  error;  and  also  says  that  the  cases 
cited  by  plaintiff  in  error  are  not  in  point  on  a  general  in- 
struction, such  as  the  one  complained  of.  *  *  *  We  are 
constrained  to  think  that  the  learned  trial  judge  erred  in 
expressing  an  opinion  as  to  the  degree  of  weight  to  be  at- 
tached to  the  surrounding  circumstances  in  determining  the 
credibility  of  witnesses." 

In  First  Nat.  Bank  v.  Loivrey,  36  Neb.  290,  where  the  is- 
sue was  fraud,  the  jury  was  told  that  certain  matters  par- 
ticularly mentioned  by  the  instruction  were  strong  evi- 
dence of  secret  trust,  and  this  was  held  prejudicial  because 
of  the  singling  out  of  particular  evidence  on  one  side.  The 
same  rule  is  announced  in  Gillet  v.  Phelps,  12  Wis.  437 ;  Wil- 
cox V.  Young,  QQ  Mich.  687.  See  also  Davis  v.  Lambert, 
69  Neb.  242. 

It  thus  appears  that  we  are  fully  committed  to  the  rule 
that  it  is  error  to  single  out  a  particular  part  of  the  evi- 
dence and  express  an  opinion  as  to  its  weight,  its  strength 
or  its  probative  force.  In  the  case  at  bar  the  only  ques- 
tion in  issue  was,  whether  or  not  the  premium  on  the  policy 


398  Trial  Peactice  [Chap.  11 

in  suit  liad  been  paid  for  the  year  1900.  The  plaintiffs 
produced  the  receipt  in  question  as  their  proof  of  such  pay- 
ment. The  defendant  produced  the  officers  of  the  com- 
I^any  who  had  charge  of  its  business,  as  witnesses,  and  es- 
pecially its  secretary  who,  it  was  claimed,  had  executed  and 
delivered  the  receipt,  in  order  to  explain  its  existence  and 
overcome  its  effect.  This  witness  testified  positively  that 
the  receipt  was  made  out  by  mistake  and  enclosed  in  a  let- 
ter to  the  assured,  which  contained  the  policy  as  changed; 
that  it  was  intended  to  evidence  the  payment  of  the  full 
amount  of  the  premium  for  the  year  1899.  In  addition  to 
such  positive  statement,  the  witness. gave  evidence  of  facts 
surrounding  the  issuance  of  the  policy,  which  at  least 
tended  to  corroborate  his  further  statement  that  the  pre- 
mium for  the  year  in  question  was  never  paid.  With  the 
evidence  in  this  condition,  the  jury  Were  told  that  the  re- 
ceipt was  a  "high  grade"  of  evidence  "to  be  overcome  only 
by  clear  and  convincing  testimony."  It  is  true  that  this 
was  followed  by  a  fairly  correct  statement  of  the  law ;  and 
yet  we  are  unable  to  say  that  the  jury  were  not  influenced 
to  the  defendant's  prejudice  thereby.  The  instruction  ap- 
pears to  fall  within  the  rule  announced  in  the  cases  above 
cited,  and  is  not  distinguishable  from  the  instructions  there- 
in condemned.  It  thus  clearlj^  appears  that  the  court 
erred  in  giving  the  instruction  quoted. 

As  the  case  will  be  tried  again,  it  is  neither  necessary  nor 
proper  for  us  to  comment  on  the  weight  of  the  evidence,  or 
discuss  any  of  the  other  assignments  of  error  contained  in 
the  record.  For  the  giving  of  the  instruction  complained 
of,  the  judgment  of  the  district  court  is  reversed  and  the 
cause  remanded  for  a  new  trial. 

Reversed. 


STATE  V.  DICK. 

Supreme  Court  of  North  Carolina.      1664, 

60  North  Carolina,  440. 

Manly,  J.     In  looking  into  the  record  in  this  case,  two 
errors  appear  to  have  been  committed  on  the  trial,  for  one 


Sec.  1]  Insteucting  the  Jury  399 

of  whicL,  at  any  rate,  the  prisoner  is  entitled  to  a  venire  de 
novo. 

On  the  trial,  a  question  arose  as  to  the  withdrawal  of 
certain  confessions  of  the  prisoner.  The  Court  declined 
withdrawing  them,  but  remarked  to  the  solicitor  for  the 
State,  that,  after  the  other  evidence  already  given  in  the 
cause,  he,  the  solicitor,  might  withdraw  them,  if  he  chose  to 
do  so,  which  the  Solicitor  declined.  This  seems  to  us,  to 
be  an  expression  of  opinion,  on  the  part  of  the  Judge,  tliat 
the  case  was  sufficiently  proved  without  the  aid  of  the  con- 
fessions. This  is  not  directly  asserted,  but  is  a  matter  of 
inference  plainly  from  the  manner  in  which  the  expedient 
of  withdrawing  the  testimony  is  suggested.  ''After  the 
other  evidence,  already  given  in  the  cause,  the  Solicitor 
might  withdraw,"  etc.  The  sense,  which  we  attribute  to 
this  language,  is  that,  which  his  Honor  himself  seems  to 
have  ascribed  to  it;  for  he  takes  pains  to  explain  to ^ the 
jury,  that  they  were  not  bound,  by  any  opinion  or  judg- 
ment of  his,  as  to  the  facts.  He  endeavored  to  obviate  the 
effect  of  his  opinion,  by  announcing,  in  distinct  terms,  the 
jury's  independency  of  him  in  all  matters  of  fact  pertain- 
ing to  the  issue;  but  this  it  was  not  practicable  for  him  to 
do.  The  opinion  had  been  expressed,  and  was  incapable  of 
being  recalled. 

The  statute  declares,  that  "no  Judge,  in  delivering  a 
charge  to  the  petit  jury,  shall  give  an  opinion  whether  a 
fact  is  fully  or  sufficiently  proved,  such  matters  being  the 
true  office  and  province  of  a  jury. ' ' 

The  object  is  not  to  inform  the  jury  of  their  province, 
but  to  guard  them  against  any  invasion  of  it. 

The  division  of  our  Courts  of  record  into  two  depart- 
ments— the  one,  for  the  judging  of  the  law,  the  other,  for 
judging  of  the  facts — is  a  matter  lying  on  the  surface  of  our 
judicature,  and  is  known  to  everybody.  It  was  not  infor- 
mation on  this  subject  the  Legislature  intended  to  furnish ; 
but  their  purpose  was  to  lay  down  an  inflexible  rule  of 
practice — that  the  Judge  of  the  law  should  not  undertake 
to  de^cide  the  facts.  If  he  can  not  do  so  directly,  he  can 
not  indirectly;  if  not  explicitly,  he  can  not  by  inuendo. 
What  we  take  to  be  the  inadvertence  of  the  Judge,  there- 
fore, was  not  cured  of  its  illicit  character  by  the  informa- 
tion which  he  immediately  conveyed.      Knowledge  on  the 


400  Teial  Peactice  [Chap.  11 

part  of  the  jury,  of  their  proper  province,  is  not  the  criter- 
ion for  determining  the  propriety  or  impropriety  of  an 
opinion  from  the  Judge,  as  to  the  sufficiency  of  the  proofs. 
It  is  the  same,  whether  the  jury  know  their  rights  or  not. 

The  provision  of  the  law  in  question,  has  been  in  exist- 
ence since  1796.  On  the  various  occasions,  when  the  law 
has  been  digested  and  re-enacted,  it  has  been  continued  in 
the  same  words ;  and  the  interpretation  which  we  now  give 
it,  is  that  which  has  been  given  it  from  the  beginning.  The 
Judge  can  not  properly  express  an  opinion,  whether  a  fact 
pertinent  to  the  issue,  is  sufficiently  or  insufficiently  proved. 
Many  questions  of  fact,  especially  inquiries  into  mental 
capacity,  and  frauds,  require  as  much  experience,  science, 
and  acumen,  as  the  abstruser  questions  of  law;  and  yet 
their  decision  is  left  by  law  in  the  hands  of  the  compara- 
tively inexperienced  and  unlearned.  This,  we  suppose, 
has  been  to  maintain  undisturbed  and  inviolate,  that  popu- 
lar arbiter  of  rights,  the  trial  by  jury,  which  was,  without 
some  such  provision,  constantly  in  danger,  from  the  will  of 
the  Judge  acting  upon  men  mostly  passive  in  their  natures, 
and  disposed  to  shift  off  responsibility;  and  in  danger  also, 
from  the  ever-active  principle,  that  power  is  always  steal- 
ing from  the  many  to  the  few.  We  impute  no  intentional 
wrong  to  the  Judge  who  tried  this  case  below.  The  error 
is  one  of  those  casualties,  which  may  happen  to  the  most 
circumspect  in  the  progress  of  a  trial  on  the  circuit.  When 
once  committed,  however,  it  was  irrevocable,  and  the  pris- 

iner  was  entitled  to  have  his  case  tried  by  another  jury. 

********** 

This  opinion  is  to  be  certified  to  the  Superior  Court,  to 
the  end,  that  it  may  take  further  proceedings  according  to 
law. 


COMMONWEALTH  V.  BARRY. 

Supreme  Judicial  Court  of  Massachusetts.      1864. 

9  Allen,  276. 

Indictment  for  keeping  and  maintaining  a  tenement  in 
School  Street  in  Boston,  used  for  the  illegal  sale  and  il- 


Sec.  1]  Instructing  the  Jury  401 

legal  keeping  for  sale  of  intoxicating  liquors. 

At  the  trial  in  tlie  superior  court,  before  Vose,  J.,  all  the 
witnesses  were  policemen,  two  of  them  being  officers  whose 
daily  beat  included  School  Street.  The  defendant's  coun- 
sel, in  his  argument  to  the  jury,  commented  with  some  se- 
verity upon  their  testimony,  as  the  testimony  of  policemen. 
The  judge  in  his  charge  told  the  jury  that  the  same  rules 
were  applicable  to  policemen  as  to  all  other  witnesses,  in 
determining  the  credit  to  be  given  to  their  testimony;  that 
in  very  many  of  the  cases  which  had  been  tried  at  the  pres- 
ent term  of  the  court  policemen  had  been  the  principal  wit- 
nesses, and  he  thought  the  jury  would  agree  with  him  in  the 
opinion  that  in  all  these  cases  they  had  manifested  great  in- 
telligence, and  testified  with  apparent  candor  and  impar- 
tiality. 

The  jury  returned  a  verdict  of  guilty,  and  the  defendant 
alleged  exceptions. 

BiGELow,  C.  J.  Upon  mature  consideration  we  have 
come  to  the  conclusion  that  we  cannot  give  our  sanction  to 
the  instructions  under  which  this  case  was  submitted  to  the 
jury.  Viewed  in  either  of  the  two  aspects  of  which  they 
are  susceptible,  it  appears  to  us  that  they  cannot  be  sup- 
ported, consistently  with  the  rules  of  law. 

If  they  are  to  be  regarded  only  as  an  expression  of  opin- 
ion by  the  court  concerning  the  credibility  of  certain  wit- 
nesses who  had  testified  in  other  cases  than  the  one  on  trial, 
they  were  clearly  of  a  nature  to  mislead  the  jury.  The 
implication  from  the  language  of  the  court  is  direct  and 
positive,  that  the  jury  might  properly  infer  that  the  wit- 
nesses in  support  of  this  prosecution  were  entitled  to  credit 
for  the  reason  that  other  persons  engaged  in  the  same  occu- 
imtion  had  testified  with  candor  and  impartiality  in  the 
trial  of  other  cases.  The  objection  to  this  instruction  is 
twofold.  In  the  first  place,  it  authorized  the  jury  to  draw 
an  inference  which  was  not  a  legitimate  deduction  from 
the  premises.  It  by  no  means  follows  naturally  or  logical- 
ly that  witnesses  employed  in  the  same  or  similar  occupa- 
tions will  testify  on  all  occasions  with  equal  fairness  and 
impartiality.  In  the  next  place,  the  instructions  gave  the 
jury  to  understand  that  they  might  travel  beyond  the  case 
as  proved  before  them,  to  seek  for  corroboration  and  sup- 
port of  the  testimony  adduced  in  behalf  of  the  prosecution 
T.  p.— 26 


402  Tkial  Practice  [Chap.  11 

in  facts  which  not  only  were  not  proved,  but  which  could 
not  have  been  properly  offered  in  evidence  by  the  govern- 
ment.     Nor  is  this  the  whole  extent  of  the  objection.      The 
facts  thus  introduced  into  the  case  were  submitted  to  the 
jury  with  a  distinct  expression  of  opinion  by  the  court  as 
to  the  effect  to  be  given  to  them,  at  a  stage  of  the  trial  when 
the  defendant  could  not  controvert  them,  and  without  any 
opportunity  being  given  to  his  counsel  to  address  the  jury 
on  the  weight  which  was  due  to  them.      Such  a  course  of 
proceeding  is  certainly  unusual,  and,  as  we  think,  does  not 
accord  with  the  due  and  orderly  conduct  of  a  criminal  trial. 
But  in  another  aspect  it  seems  to  us  that  the  instruc- 
tions were  objectionable.      The  credibility  of  the  witnesses 
who  had  testified  in  support  of  the  charge  in  the  indictment 
was  a  fact  which  it  was  the  exclusive  province  of  the  jury 
to  determine.      As  essentially  affecting  their  bias,  and  the 
credit  to  be  given  to  their  testimony,  their  occupation  and 
connection  with  the  origin  of  the  prosecution  against  the 
defendant  might  be  important  elements,  and,  within  proper 
limits,  proper  subjects  of  comment  by  counsel,  and  of  con- 
sideration by  the  jury.      If  the  instructions  are  to  be  con- 
strued, as  we  think  they  fairly  may  be,  as  the  expression  of 
the  opinion  of  the  court  on  the  degree  of  credit  to  whicti 
these  witnesses  were  entitled,  the  court  exceeded  its  author- 
ity in  stating  such  opinion  to  the  jury.      By  Gen.  Sts.  c. 
172,  Sec.  15,  the  duty  of  charging  the  jury  in  criminal  cases 
is  specially  enjoined  upon  the  court.    By  Gen.  Sts.  c.  115, 
Sec.  5,  which  is  applicable  alike  to  civil  and  criminal  trials, 
the  rule  is  prescribed  by  which  courts  are  to  be  guided  in 
the  performance  of  this  duty.      It  must  be  admitted  that 
this  provision  of  the  statute  is  not  expressed  in  terms  which 
are  free  from  ambiguity.      But  although  there  is  a  seeming 
repugnancy  in  the  two  branches  of  the  section,  we  think 
that  they  are  susceptible  of  a  reasonable  interpretation, 
which  will  give  full  force  and  effect  to  both  of  them,  and 
at  the  same  time  carry  out  what  seems  to  have  been  the 
manifest  purpose  of  the  legislature.       It  is  clear  beyond 
controversy,  that  the  first  clause  contains  a  distinct  and  ab- 
solute prohibition,  that  the  "courts  shall  not  charge  juries 
with  respect  to  matters  of  fact."      To  reconcile  this  with 
the   clause   that  follows,   which    provides   that   the   courts 
"may  state  the  testimony  and  the  law,"  the  prohibition 


Sec.  1]  Insteucting  the  Juky  403 

must  be  regarded  as  a  restraint  only  on  tlie  expression  of 
an  opinion  b}^  the  court  on  the  question  whether  a  particu- 
lar fact  or  series  of  facts  involved  in  the  issue  of  a  case  is 
or  is  not  established  by  the  evidence.  In  other  words,  it 
is  to  be  construed  so  as  to  prevent  courts  from  interfering 
with  the  province  of  juries  by  anj^  statement  of  their  own 
judgment  or  conclusion  upon  matters  of  fact.  This  con- 
struction effectually  accomplishes  the  great  object  of 
guarding  against  any  bias  or  undue  influence  which  might 
be  created  in  the  minds  of  jurors  if  the  weight  of  the  opin- 
ion of  the  court  should  be  permitted  to  be  thrown  into  the 
scale  in  deciding  upon  issues  of  fact.  But  further  than 
this  the  legislature  did  not  intend  to  go.  The  statute  was 
not  designed  to  deprive  the  court  of  all  the  power  to  deal 
with  the  facts  proved.  On  the  contrary,  the  last  clause 
of  the  section  very  clearly  contemplates  that  the  duty  of  the 
court  may  not  be  fully  discharged  by  a  mere  statement  of 
the  law.  By  providing  that  the  court  may  also  state  the 
testimony,  the  manifest  purpose  of  the  legislature  was  to 
recognize  and  affirm  the  power  and  authority  of  the  court, 
to  be  exercised  according  to  its  discretion,  to  sum  up  the 
evidence,  to  state  its  legal  effect  and  bearing  on  the  issues, 
and  to  indicate  its  proper  application  under  the  rules  of 
law. 

In  the  case  at  bar,  the  court  exceeded  the  limit  prescribed 
by  the  statute.  If  the  language  used  by  the  court  was  in- 
tended to  be  applicable  to  the  witnesses  who  had  testified 
in  behalf  of  the  prosecution,  it  was  an  expression  of  opinion 
as  to  their  credibility.  As  this  was  a  matter  of  fact, 
within  the  exclusive  province  of  the  jury  to  determine,  such 
expression  of  opinion  went  beyond  a  ''statement  of  the 
testimony,"  and  trenched  on  prohibited  ground,  being  a 
charge  to  the  jury  "with  respect  to  matters  of  fact." 

We  have  already  said  that  the  occupation  of  a  witness,  in 
connection  with  other  facts,  may  have  a  material  bearing  on 
the  credibility  of  his  testimony  in  a  particular  case.  But 
we  feel  bound  to  add  that  we  do  not  intend  to  express  an 
opinion  on  the  question  whether  in  the  case  at  bar  there 
was  any  valid  ground  for  calling  in  question  the  veracity  or 
candor  of  the  witnesses  whom  the  defendant's  counsel 
sought  to  impeach.  No  such  point  seems  to  have  been 
raised  at  the  trial,  nor  are  the  facts  bearing  upon  it  stated 


404  Tkial  Pkactice  [Chap.  11 

in  the  exceptions.  The  inference  from  the  course  of  the 
trial,  especially  from  the  line  of  argument  which  the  coun- 
sel for  the  defendant  was  permitted  to  take,  and  from  the 
instructions  to  the  jury,  is,  that  the  ground  on  which  the 
impeachment  of  the  witnesses  was  placed  was  deemed  to 
have  been  proper  matter  for  the  consideration  of  the  jury. 

Exceptions  sustained.^ 

1  Summing  up  evidence.  The  judge  may  sum  up  the  evidence  without  in- 
fringing the  rule  against  commenting  upon  the  weight  jf  the  evidence,  and 
in  so  doing  he  may  properly  ' '  state,  analyze,  compare  and  explain  the  evi- 
dence."  Hamlin  v.  Treat,  (1895)  87  Me.  311,  32  Atl.  909.  Some  state  con- 
stitutions couple  with  the  prohibition  against  charging  on  the  facts  an  ex- 
press permission  for  the  judge  to  state  the  evidence.  Thus,  the  constitution 
of  Tennessee,  Art.  6,  Sec.  9,  provides:  "Judges  shall  not  charge  juries  with 
respect  to  matters  of  fact,  but  may  state  the  testimony  and  declare  the  law. ' ' 
The  California  constitution  has  identically  the  same  provision.  Art.  VI, 
Sec,  19. 


Section  2.     Scope  of  Insteuctions. 

(a)     Relation  to  Pleadings  and  Evidence. 

JACKSONVILLE,  TAMPA  &  KEY  WEST  RAILWAY 
COMPANY  V.  NEFP. 

Supreme  Court  of  Florida.       1891. 

28  Florida,  373. 

Mabry,  J. : 

The  appellee,  Neff,  in  April,  1887,  sued  the  appel- 
lant railway  company  in  the  Circuit  Court  for  Clay 
County,  Florida,  for  $5,000  damages  for  the  destruction  of 
certain  property  of  appellee  by  fire,  caused  by  the  alleged 
es-cape  of  sparks  from  a  locomotive  engine  under  the  con- 
trol of  appellant  *    *    * 

Tlie  third  point  calls  in  question  the  correctness  of  the 
second  charge  given  for  plaintiff  below.  This  charge  is 
ns  follows:  "That  if  the  jury  believe  from  the  evidence 
that  without  fault  or  neglect  of  the  plaintiff,  defendant's 
employes  negligently  permitted  a  lot  of  loose  dry  hay  to 
remain  for  some  time  prior  to  the  18th  of  March,  A.  D, 


Sec.  2]  Instructing  the  Jury  405 

1887,  exposed  in  a  box  car  near  plaintiff's  property  whicli 
was  set  on  fire  on  said  day,  and  that  tlie  employes  of  said 
defendant  railroad  comiDany  negligently  permitted  said  fire 
to  be  communicated  from  said  car  so  left  exposed  by  said 
employes  to  plaintiff's  said  property,  and  to  burn  and  de- 
stroy the  same,  the  verdict  should  be  for  the  plaintiff." 
This  charge  was  excepted  to  by  defendant  below.  The  ob- 
jection urged  by  appellant  to  this  charge  is,  that  "it  has  no 
relation  whatever  to  the  issues  raised  by  the  pleadings,  and 
the  jury  were  thereby  instructed  that  if  a  loss  resulted  to 
the  plaintiff  by  reason  of  a  cause  of  action  of  which  no 
mention  was  made  in  the  pleadings,  they  should  find  for 
the  plaintiff."*    *    * 

The  declaration  contains  but  one  count,  and  the  gist  of 
the  action  as  therein  stated  is,  that  the  defendant  company 
so  neglected  and  unskill fully  managed  its  engine  and  the 
fire  and  the  burning  matter  therein  contained,  and  said  en- 
gine was  so  insufficiently  and  improperly  constructed,  that 
sparks  from  said  fire  and  portions  of  said  burning  matter 
escaped  and  flew  from  said  engine  to  and  upon  a  building 
in  which  plaintift's  property  was  situated,  whereby  said 
building  and  property  were  burned  and  totally  destroyed. 
Issue  was  joined  upon  all  the  pleas  of  defendant.  The  ob- 
ject of  pleading  is  to  ascertain  with  certainty  and  precision, 
the  matters  of  fact  which  are  affirmed  on  the  one  hand  and 
denied  on  the  other,  and  which  are  mutually  proposed  and 
accepted  by  the  parties  for  decision.  It  is  clear  that  plain- 
tiff's cause  of  action  is  based  upon  the  negligent  construc- 
tion or  negligent  use  of  defendant's  locomotive  engine, 
whereby  sparks  and  burning  matter  escaped  from  it  and 
caused  the  fire.  The  question  submitted  by  the  pleadings 
is  whether  or  not  defendant  caused  the  fire  by  reason  of  a 
defective  engine  or  the  unskillful  management  of  the  en- 
gine. The  negligence  of  defendant  submitted  to  the  jury 
for  investigation  by  the  charge  under  consideration  con- 
sists not  in  causing  the  fire,  but  in  allowing  loose  dry  hay 
to  remain  in  a  box  near  plaintiff's  property,  and  in  negli- 
gently permitting  fire  to  be  communicated  from  said  car  to 
plaintiff's  property.  The  origin  of  the  fire  is  lost  sight 
of  in  this  charge,  and  under  it  the  jury  were  authorized 
to  find  for  the  plaintiff  although  the  defendant  did  not  in 
any  way  cause  the  fire,  provided  they  believed  that  it  neg- 


406  Trial  Practice  [Chap.  11 

ligently  permitted  loose  dry  hay  to  remain  in  the  car  near 
plaintiff's  property,  and  negligently  permitted  the  fire  to 
be  communicated  from  said  car  to  plaintiff's  property  and 
destroy  it.      If  it  be  conceded  that  this  charge  embodies  a 
good  cause  of  action  against  the  defendant,  it  is  evident 
that  it  is  not  contained  within  the  issues  made  by  the  plead- 
ings.      Appellee  contends,  however,  that  his  right  to  re- 
cover is  co-extensive  with  the  case  made  by  the  evidence 
introduced  on  the  trial,  and  the  trial  judge  was  authorized 
to  go  outside  of  the  issues  joined  between  the  parties  and 
instruct  the  jury  to  find  for  the  plaintiff  to  the  extent  jus- 
tified by  the  evidence.      Respectable  authorities  hold  that 
the  pleadings  are  merely  to  notify  the  opposite  party  of 
the  ground  of  action  or  defense,  and  where  a  party  fails  to 
object  to  evidence  because  it  is  not  relevant  to  the  issues, 
the  court  is  justified  in  instructing  the  jury  upon  the  whole 
evidence,  and  is  not  confined  in  his  instructions  to  the  issues 
made  in  the  pleadings.      The  correct  view,  we  think,  is  that 
the  instructions  must  be  confined  to  the  issues  made  by  the 
pleadings;  and  this  rule  has  been  recognized  in  our  state. 
In  the  case  of  Porter  v.  Ferguson,  4  Fla.,  102,  an  action  of 
assumpsit  was  instituted  by  Ferguson  against  Porter,  based 
upon'  a  verbal  agreement  by  which  the  former  undertook 
to  make  and  send  to  the  latter,  who  was  a  merchant  at  Key 
AVest,  arrowroot  to  be  shipped  thence  to  New  Orleans,  and 
Porter  promised  to  receive  the  arrowroot  and  ship  it  to 
New  Orleans  for  sale  in  that  market,  and  to  account  to 
Ferguson   for    the    proceeds.        The    declaration    further 
averred  that  in  pursuance  of  such  agreement  and  under- 
standing, Ferguson  shipped  to  Porter  1725  pounds  of  ar- 
rowroot worth  $140,  which  was  received  by  him,  but  con- 
trary to  said  agreement  and  understanding  he  shipped  it  ta 
Charleston  and  it  got  lost  at  sea,  by  reason  whereof  the 
defendant  became  liable  to  pay  plaintiff  the  value  of  said 
arrowroot.      The  plea  was  non  assumpsit.      The  following 
instruction  was  given  for  the  plaintiff  on  the  trial  of  that 
cause,  viz.:  ''If  the  jury  believe  from  the  testimony  that 
it  was  the  usage  of  trade  for  consignees  for  shijmient  at 
Key  West  to  insure  on  goods  of  others  sent  to  tliem  for 
sliipment,  without  instructions  as  to  insurance,  and  that 
J.  Y.  Porter  sliippod  the  arrowroot  in  question  without  in- 
suring it,  and  it  was  lost  at  sea,  lie  was  liable  for  the  loss, 


I 

Sec.  2]  Trial  Peactice  .  407 

and  they  ought  to  find  for  plaintiff."  In  spealdng  of  this 
charge  this  conrt  says:  "Now,  what  has  this  instruction 
to  do  with  the  issue  which  the  jury  were  sworn  to  try?  The 
instruction  directs  the  attention  of  the  jury  to  a  breach  of 
the  contract  or  agreement,  when  the  breach  is  not  put  in 
issue  by  any  plea — a  breach,  too,  which  is  not  alleged  in  the 
declaration.  The  breach  alleged  is  for  shipping  to  Char- 
leston, when  he  was  bound  by  his  undertaking  to  ship  to 
New  Orleans,  whereby  the  goods  were  lost — the  deviation 
is  the  gist  of  the  breach ;  the  negligence  or  omission  to  ef- 
fect an  insurance  on  the  goods  against  the  perils  of  the  sea, 
which,  by  the  usage  of  trade,  he  should  have  done  is  not 
charged.  Whether  the  instruction  is  or  is  not  correct  in 
point  of  law,  is  here  not  necessary  to  be  decided — it  was  not 
in  issue,  and  therefore,  irrelevant,  and  should  not  have  been 
given;  and  if  it  tended  to  mislead  the  jury,  and  withdraw 
their  minds  from  the  consideration  of  the  true  issue  it  is 
erroneous.  In  the  case  of  McKay  v.  Friehele,  8  Fla.,  21, 
the  court  in  speaking  of  the  relevancy  of  instructions  to  the 
issues  says:  "In  order  to  determine  the  correctness  and 
appropriateness  of  an  instruction  which  may  be  given  to 
the  jury,  resort  must  always  be  had  to  the  evidence  upon 
which  the  instruction  is  based.  That  evidence,  whether 
parol  or  documentary,  is  to  be  found  only  in  the  'bill  of 
exceptions, '  whose  peculiar  office  it  is  to  give  the  incidents 
occurring  in  the  progress  of  the  trial,  from  the  joining  of 
the  issue  to  the  rendition  of  the  verdict.  It  may  be  laid 
down  as  a  general  rule,  subject  to  but  one  exception,  that 
wherever  the  error  complained  of  is  predicated  upon  the 
instructions  of  the  court  below,  the  whole  evidence,  or,  at 
least,  so  much  thereof  as  forms  the  basis  of  the  instruction, 
must  appear  in  the  'bill  of  exceptions'  accompanying  the 
record  of  the  cause.  The  exception  alluded  to  is  where 
the  instruction  is  manifestly  without  the  limits  of  the  issue 
joined  between  the  parties,  and  is  likely  to  mislead  the  jury 
in  making  up  their  verdict.  In  such  case,  no  reference  to 
the  evidence  can  be  of  any  avail  in  determining  the  cor- 
rectness of  the  instructions,  and  the  court  may  pronounce 
upon  it  even  in  the  absence  of  the  bill  of  exceptions,  pro- 
vided it  be  properly  attested  bv  the  signature  of  the  judge 
below."  *  *  *  ' 
The  judge  who  presided  at  the  trial  of  this  case  pre- 


408  Trial  Practice  [Chap.  11 

sented  by  instructions  to  the  jury  defendant's  liability  un- 
der the  issues  raised  by  the  pleadings,  but  the  second  in- 
struction presented  a  view  of  the  case  not  embraced  in  the 
issues  and  was  calculated  to  mislead  the  jury  in  their  ver- 
dict. We  cannot  say  that  the  jury  did  not  base  their  find- 
ings against  defendant  under  this  instruction.  The  view 
of  this  charge,  that  defendant  is  liable  if  its  employes  neg- 
ligently permitted  fire  to  escape  from  the  car  to  plaintiff's 
property,  would  call  for  further  consideration,  even  if  the 
charge  were  not  obnoxious  to  the  rule  above  pointed  out. 
Our  decision  is  based,  however,  upon  the  view  that  the  in- 
struction under  consideration  was  without  the  limit  of  the 
issues  joined  between  the  parties  and  was  likely  to  mislead 
the  jury  in  making  up  their  verdict,  and  was  for  this  reason 
erroneous. 

For  the  error  in  giving  the  second  charge  in  behalf  of  the 
plaintiff  below,  the  judgment  is  reversed,  and  a  new  trial 
awarded.^ 

1  To  the  same  effect  see  Knnst  v.  City  of  Grafton  (1910)  67  W.  Va.  20, 
67  S.  E.  74;  W.  L.  Moodey  &  Co.  v.  Eowland  (1907)  100  Tex.  363,  99  S.  W. 
1112;  Latourette  v.  Meldrum  (1907)  49  Ore.  397,  90  Pac.  503;  Goldman  v. 
New  York,  N.  H.  &  H.  E.  K.  Co.  (1910)  83  Conn.  59,  75  Atl.  148. 


HANSON  V.  KLINE. 

Supreme  Court  of  Iowa.      1907, 

136  Iowa,  101. 

Action  at  law  to  recover  damages  arising  out  of  false  rep- 
resentations in  connection  with  an  exchange  of  properties. 
The  defendants,  additional  to  Kline,  are  W.  E.  Gray  and 
J.  E.  Gray,  and  at  the  time  in  question  all  the  parties  lived 
in  Rockwell  Oity,  Calhoun  county.  The  petition  alleges 
that  in  July,  1904.  plaintiff  was  the  owner  of  a  stock  of  mer- 
chandise in  Rockwell  City,  valued  by  him  at  $2,000,  which 
ho  was  induced  by  the  defendants  Gray  to  trade  to  the  de- 
fendant Kline  for  a  farm  of  one  hundred  and  sixty  acres 
situated  in  Hayes  county,  Nebraska.       The  specific  aver- 


Sec.  2]  Instructing  the  Jury  409 

nent  is  that  defendants  entered  into  a  conspiracy  to  bring 
about  such  trade  by  false  representations  respecting  the 
Nebraska  farm,  and  that,  pursuant  thereto,  the  farm  was 
falsely  represented,  and  the  trade  thereby  accomplished, 
greatly  to  his  damage.  The  defendants  answered  separ- 
ately, and  each  denied  the  charge  of  fraud  as  contained  in 
the  petition.  On  the  trial  plaintiff  had  a  verdict  as  against 
all  the  defendants  jointly,  on  which  judgment  was  entered, 
and  the  defendants  appeal. — Reversed  and  remanded. 

Bishop,  J.  The  theory  of  the  petition  was  that  the  rep- 
resentations claimed  to  have  been  made  by  defendants 
were  made  as  from  personal  knowledge — such  is  the  dis- 
tinct allegation.  In  a  request  presented,  the  defendant 
asked  that  the  jury  be  instruced  that  if  the  false  representa- 
tions were  made  as  alleged,  but  that  it  was  stated  to  plain- 
tiff at  the  time  that  they  were  made  on  information  derived 
from  others,  and  not  on  personal  knowledge,  then  plaintiff 
could  not  recover.  The  request  was  refused,  and  the  jury 
was  instructed  strictly  on  the  theory  of  the  petition ;  that  is, 
they  were  told  that  if  defendants  in  representing  the  condi- 
tion of  the  farm  did  so  as  of  their  own  personal  knowledge, 
and  so  stated  to  plaintiff,  and  the  representation  was  false, 
and  plaintiff  relied  on  such  representation  to  his  damage, 
the  defendant  would  be  liable.  And,  contra,  if  the  rep- 
resentations were  not  so  made  as  alleged,  then  plaintiff 
could  not  recover.  The  jury  was  not  otherwise  instructed 
on  the  subject.  We  think  here  was  error.  Should  it  be 
conceded  that  the  instruction  given  correctly  stated  the  law 
applicable  to  the  case,  the  defendants  were  entitled  to  a  ver- 
dict. This  is  so  because  there  was  no  evidence  on  which 
to  base  a  finding  to  the  contrary,  but,  as  we  have  seen, 
plaintiff  himself  declares  that  in  making  the  representa- 
tions alleged  defendants  expressly  disavowed  any  and  all 
personal  knowledge.  Hence  the  proof  did  not  meet  the 
issue.  Accordingly,  we  must  go  ba^ck  to  the  query:  Did 
the  instruction  correctly  state  the  law  applicable  to  the 
case?  If  we  are  to  judge  alone  from  the  issues  made  in 
pleading,  the  answer  must  be  in  the  afhrmative.  If  we  are 
to  judge  from  the  issues  as  developed  on  the  trial,  then  the 
call  for  a  negative  answer  is  imperative.  We  say  issues 
developed  on  the  trial,  because  it  is  plain  that  plaintiff  did 
not  go  into  the  trial  relying  upon  representations  made  as 


410  Trial  Peactice  [Chap.  11 

of  the  personal  knowledge  of  the  defendants.      At  the  very 
outset,  he  testified  that  defendants  denied  having  any  per- 
sonal knowledge.      And  it  is  evident  that  from  beginning 
to  end  the  defendants  did  not  consider  that  they  were  called 
npon  to  face  the  strict  issue  as  made  by  the  pleadings. 
Plaintiff  did  rely  on  representations  professedly  made  on 
information  and  belief,  and  defendants  trained  their  forces 
accordingly.       This  being  true,  there  arises  the  further 
question  whether  or  not  it  was  competent  for  the  court,  and 
its  duty,  to  disregard  the  strict  issue  as  made  in  the  plead- 
ings, and  instruct  according  as  the  parties  had  made  the  is- 
sue on  the  trial.      That  it  was  competent  for  the  court  to 
do  so  we  have  no  doubt.      Beach  v.  Wakefield,  107  Iowa, 
567;  Fenner  v.  Crips,  109  Iowa,  455.      So,  also,  we  think 
it  was  its  duty  to  do  so,  and,  in  view,  of  the  case  presented 
by  the  record,  that  failure  amounted  to  error.      Under  our 
system,  it  is  left  for  the  parties  to  frame  the  issues,  and, 
if  they  proceed  without  objection — and  such  is  the  case 
here — to  the  trial  of  an  issue  not  presented  by  the  plead- 
ings, it  amounts  to  a  consent  to  try  such  issue.      The  issue 
is  then  rightfully  in  the  case.      Mitchell  v.  Joyce,  76  Iowa, 
449;  Bank  v.  Boesch,  90  Iowa,  47;  Beach  v.  Wakefield, 
supra;  Erickson  v.  Fisher,  51  Minn.  300  (53  N.  W.  638). 
And,  the  issue  being  rightfully  in  the  case,  the  court  must 
instruct  upon  it.      Potter  v.  Railway,  46  Iowa,  399;  Hill  v. 
Aultmann,  68  Iowa,  630.      We  must  presume  that  the  court 
was  fully  advised  of  the  shift  in  the  issue.      Attention  to 
the  course  of  the  trial  as  it  proceeded  was  its  duty.    More- 
over, there  was  before  it  the  request  for  instruction  pre- 
sented by  defendants,  and,  while  not  adequately  stating  the 
law  it  was  sufficient  to  arrest  attention  and  call  for  a  proper 
instruction  on  the  subject.      Kinyon  v.  Railway,  118  Iowa, 
349.      We  may  add  that  as  the  issue  made  by  the  pleadings 
respecting  the  subject-matter  under  discussion  was,  in  ef- 
fect, withdrawn  by  the  parties,  such  issue  should  not  in  any 
event  have  been  presented  to  the  jury.      Lumber  Co.  v. 
Raymond,  76  Iowa,  225;  Erickson  v.  Barber,  83  Iowa,  367. 
For  the  reasons  pointed  out  in  this  opinion,  the  judgment 
api)eal('d  from  must  be,  and  it  is,  reversed,  and  the  cause 
is  ordered  remanded  for  a  new  trial.^ 

1  To  the  Rame  cfFort  see  Mitchell  v.  Samford   (1910)   149  Mo.  App.  72,  130 
S.  W.  99;  Johnson  v.  Caughren  (1909)  55  Wash.  125,  104  Pac.  170;  Central 


Sec.  2]  Trial  Practice  411 

R.  R.  &  Banking  Co.  v.  Attaway  (1892)  90  Ga.  656,  16  S.  E.  956;  Brusie  v. 
Peck  Bros.  &  Co.  (1892)  135  N.  Y.  622,  32  N.  E.  76;  Flanders  v.  Cottrell 
(1875)  36  Wis.  564. 

In  Schwaninger  v.  McNeeley  &  Co.  (1906)  44  Wash.  447,  87  Pac.  514,  the 
court  said:  "When  evidence  is  received  without  objection  upon  any  particu- 
lar ground  not  covered  by  the  complaint,  the  court  may  assume  that  the 
complaint  is  as  broad  as  the  evidence  when  charging  the  jury,  and  the  com- 
plaint will  be  deemed  amended  to  conform  with  the  evidence  and  charge, 
since  the  amendment  could  have  been  made  as  of  course  at  the  trial. ' ' 

But  in  Budd  v.  Hoffheimer  (1873)  52  Mo.  297,  it  was  held  that  if  a  party 
wishes  an  instruction  upon  a  matter  duly  proved  but  not  alleged  in  his 
pleading,  he  must  first  ask  leave  to  amend  his  pleading  to  conform  with 
the  proof,  and  unless  he  does  so  such  an  instruction  is  properly  refused. 


OWENSBORO  WAGON  COMPANY  V.  BOLING. 

Court  of  Appeals  of  Kentucky.      1908, 

32  Kentucky  Law  Reporter,  816. 

NUNN,  J.   *      *      * 

The  petition  was  sufficient  and  stated  a  cause 
of  action.  It  was  alleged  that  appellee  lost  his  hand  by 
the  negligence  of  appellant's  servants  superior  in  author- 
ity to  him,  and  particularlized  the  acts  and  omissions  which 
constituted  the  negligence — i.  e.,  that  he  was  raised  on  a 
farm,  was  only  18  years  old  and  had  never  worked  with 
machinery  before  he  was  employed  by  appellant,  of  which 
fa'Ct  he  informed  appellant's  superintendent  at  the  time  he 
employed  him ;  that  the  rip  saw,  at  which  he  was  placed  to 
perform  labor,  was  defectively  constructed  in  the  fasten- 
ings and  bolts  that  held  it ;  that  it  was  left  unguarded,  mth 
nothing  to  keep  his  hand  from  coming  in  contact  with  it; 
and  that  defendant  failed  to  furnish  him  a  reasonably  safe 
place  in  which  to  perform  his  labor.  Appellant  filed  an 
answer,  controverting  all  the  affirmative  matter  contained 
in  the  petition,  and  pleaded  contributory  negligence  on  the 
part  of  appellee.  The  testimony  showed  that  appellee  was, 
at  the  time  of  his  emplojTnent  by  appellant,  only  18  years  of 
age,  and  had  had  no  experience  in  working  with  machinery, 
and  that  he  informed  appellant's  superintendent  of  this 
fact ;  that  he  was  put  to  off-bearing  lumber  from  a  rip  saw, 
and  after  he  had  worked  8  days,  but  not  consecutively,  he 
was  directed  by  the  foreman,  who  had  authority  to  do  so, 


412  Tkial  Practice  [Chap.  11 

to  remove  the  belt,  by  the  use  of  a  lever,  from  the  pulley 
which  operated  the  saw  to  a  loose  pulley  called  the  "idler," 
to  raise  the  table,  under  and  through  which  the  saw  re- 
volved, and  then  to  remove  two  taps,  or  screws,  which  were 
situated  about  4  and  6  inches  from  the  saw,  for  the  purpose 
of  oiling  the  machine.  In  attempting  to  comply  with  the 
directions  of  the  foreman  and  at  the  moment  he  undertook 
to  remove  the  oil  caps,  for  some  reason  not  explained,  the 

saw  cut  off  his  hand. 

********** 

There  was  no  testimony  introduced  tending  to  show  that 
this  rip  saw  or  its  attachments  were  defective  or  out  of  re- 
pair. The  only  thing  that  tended  in  the  least  to  show  this 
was  a  statement  by  appellee  that  the  tap,  or  screw,  failed  to 
move,  and  if  it  did  it  is  more  than  probable  it  was  because 
of  his  inexperience,  especially  when  all  the  evidence  shows 
that  it  was  in  proper  repair  and  condition.  There  was  no 
testimony  introduced  by  appellee  showing  that  the  saw 
was  improperly  guarded.  Appellant's  testimony  showed 
that  it  could  not  have  been  guarded  or  made  safer  than  it 
was.  There  was  no  proof  that  the  place  at  which  appellee 
worked  could  have  been  made  safe  and  still  have  operated 
the  saws.  The  building  in  which  the  saws  were  located  was 
a  large  one,  and  contained  many  saws  of  different  kinds, 
and  a  number  of  people  were  working  therein.  There  was 
no  testimony  introduced  showing  or  tending  to  show  any 
negligence  or  dereliction  of  duty  upon  the  part  of  appellant, 
other  than  failing  to  warn  and  instruct  appellee  with  refer- 
ence to  the  dangers  incident  to  his  duties  and  how  to  avoid 
same.  Yet  the  court  gave  eight  instructions  in  which  he  sub- 
mitted to  the  jury  all,  or  about  all,  the  different  acts  of 
negligence  alleged  in  the  petition.  This  was  calculated  to 
r-onfuse  and  mislead  the  jury.  As  stated,  there  was  but  one 
issue  made  by  the  testimony,  and  the  court  should  have  sub- 
mitted to  the  jury  that  issue  only. 


*  *  *  *  * 


*  *  # 


The  case  is  reversed,  and  remanded  for  further 
proceedings  consistent  herewith. 


Sec.  2]  Instkucting  the  Juby  il3 


DOUDA  V.  CHICAGO,  ROCK  ISLAND  &  PACIFIC 
RAILWAY  COMPANY. 

Supreme  Court  of  Iowa.     1909. 

141  Iowa,  82. 

Ladd,  J. — Plaintiff's  employment  at  the  time  of  his  injury 
was  that  of  eieaning  out  clinkers  from  the  fire  boxes  of  de- 
fendant's engines  in  its  roundhouse  at  Cedar  Rapids.  The 
usual  method  of  performing  this  work  was  to  drop  the 
"dump"  by  means  of  a  bar  from  outside  the  wheels  of  the 
engine  while  it  was  standing  over  the  ash  pit,  and  to  re- 
place the  dumping  mechanism  in  the  same  way.  But  in  this 
particular  instance  the  plaintiff  thought  it  necessary  to 
crawl  under  the  engine  into  the  ash  pit  in  order  to  close  the 
dump.  He  advised  the  "hostler"  in  charge  of  the  engine, 
who  was  in  the  engineer's  cab,  of  his  intention  to  go  under, 
having  had  the  engine  moved  to  what  he  considered  a  proper 
place  for  that  purpose,  and  then  proceeded  to  crawl,  feet 
first,  through  the  narrow  opening  between  the  drive  wheels 
and  above  the  side  bar  or  connecting  rod.  When  his  body 
was  part  way  through,  the  engine  moved  backwards,  and 
the  consequent  rising  of  the  side  bar  pinched  or  crushed  the 
plaintiff  causing  the  injuries  of  which  he  complains.  There 
was  a  question  under  the  evidence  as  to  whether  plaintiff 
was  not  guilty  of  contributory  negligence  in  attempting  to 
go  under  the  engine  at  all  or  in  attempting  to  go  under  it 
in  the  manner  above  described,  but  there  is  no  complaint  as 
to  the  instructions  with  reference  to  contributory  negli- 
gence, and  that  feature  of  the  case  may  be  passed  without 
further  notice. 

The  defendant  is  alleged  to  have  been  negligent  in  two 
respects:  (1)  in  that  its  hostler  in  charge  of  the  engine, 
with  knowledge  that  plaintiff  was  under  it,  without  warn- 
ing him  started,  moved,  or  permitted  the  engine  to  move; 
and  (2)  the  engine  was  unsafe  and  defective,  in  that  it 
would  start  forward  without  the  lever  being  moved  or 
steam  being  turned  on  or  any  action  of  the  person  in 
charge,  and  defendant,  knowing  this  and  plaintiff's  posi- 
tion, took  no  precaution  to  prevent  this,  but  allowed  the 
engine  to  move,  and   thereby  injure  him.     The  evidence 


414  Tkial  Peacticb  [Chap.  11 

failed  to  point  out  any  defect  in  tlie  engine,  or  that  it  had 
ever  started  before  without  steam  being  turned  on,  or  that 
defendant  had  any  reason  to  anticipate  such  an  occur- 
rence. Nevertheless  the  jury  was  instructed  that  if  they 
found  ''that  said  locomotive  was  unsafe  and  defective,  in 
that  it  would  start  after  being  stopped  without  moving  the 
lever  therefor  or  turning  on  the  steam  for  the  purpose  of 
starting  it,  and  that  it  would  with  the  knowledge  of  de- 
fendant or  its  emi3loyes  in  charge  thereof  start  without  any 
action  on  the  part  of  those  in  charge  thereof,  and  the  de- 
fendant took  no  precaution  or  safeguards  to  prevent  its 
said  movements,  and  that  said  locomotive  was  by  reason 
thereof  and  the  careless  and  negligent  acts  of  the  person 
in  charge  thereof,  without  notice  or  warning  or  signal  to 
the  plaintiff,  started  and  permitted  to  run  upon  the  body  of 
plaintiff  while  under  said  engine  and  doing  said  work,  and 
tlmt  by  reason  thereof  plaintiff  was  injured,"  then,  if  such 
injuries  were  without  fault  of  plaintiff  contributing  there- 
to, plaintiff  was  entitled  to  recover.  Even  though  this  in- 
struction be  conceded  to  be  correct  in  the  abstract,  the  evi- 
dence was  not  such  as  to  authorize  it.  There  was  nothing 
in  the  record  to  charge  the  employees  operating  the  engine 
with  knowledge  of  any  defect  therein  or  to  indicate  any 
information  concerning  it  on  defendant's  part.  Even  if 
the  engine  be  conceded  to  have  been  defective,  this  was  not 
shown  to  have  been  apparent  or  discoverable  on  reasonable 
inspection,  nor  does  it  appear  from  the  evidence  that  the 
defect  had  existed  prior  to  that  night,  or  that  defendant 
was  negligent  in  failing  to  discover  and  repair  it  or  in  using 
it  in  the  condition  it  was  in.  So  that,  even  though  it  might 
be  inferred  from  the  moving  of  this  locomotive  engine  with- 
out the  application  of  steam  or  other  agency,  if  it  did  so 
move,  that  it  was  then  out  of  repair,  there  is  no  basis  in 
the  evidence  on  which  to  found  a  charge  of  negligence 
against  the  defendant,  unless  the  doctrine  of  res  ipsa  loqui- 
tur be  applied,  and  this  under  the  peculiar  facts  of  this 
case  was  precluded  by  a  previous  instruction,  "that  the 
accident  occurred  will  not  of  itself  show  negligence  on 
the  part  of  defendant,  but  you  should  determine  the  ques- 
tion (defendant's  negligence)  from  all  the  facts  and  cir- 
cumstances before  you."  Nor  does  the  instruction  first 
quoted  proceed  on  the  theory  that  such  doctrine  is  applic- 


Sec.  2]  Instructing  the  Juey  415 

able,  but  exacts  specific  findings  from  tlie  evidence  constitut- 
ing the  elements  of  negligence  alleged.  ***** 

For  the  reasons  pointed  out,  the  judgment  of  the  trial 
court  is  reversed. 


BUYKEN  V.  LEWIS  CONSTRUCTION  COMPANY. 

Supreme  Court  of  Washington.    1909. 

51   Washington,  627. 

RuDKiN,  C.  J. — This  was  an  action  in  trespass  to  re- 
cover damages  for  sluicing  down  and  removing  earth  from 
a  certain  lot  in  the  city  of  Seattle  owned  by  the  plaintiffs. 
The  defendant  admitted  the  commission  of  the  acts  com- 
plained of,  though  not  in  manner  and  form  as  alleged,  and 
pleaded  by  way  of  justification  that  the  sluicing  was  done 
pursuant  to  a  verbal  contract  between  the  plaintiffs  and  the 
defendant  which  was  afterward  reduced  to  writing  and 
signed  by  the  defendant,  though  not  by  the  plaintiffs.  The 
reply  denied  the  plea  of  justification  as  set  forth  in  the  an- 
swer. The  cause  was  submitted  to  a  jury  under  instruc- 
tions from  the  court,  and  a  verdict  in  favor  of  the  plain- 
tiffs in  the  sum  of  $1,500  was  returned.  From  a  judgment 
on  this  verdict,  the  defendant  has  appealed. 

The  principal  assignment  of  error  arises  out  of  the 
following  charge  of  the  court,  which  was  duly  excepted  to : 

*'If  you  find  from  the  evidence  that  there  was  no  such 
contract  as  alleged  by  the  defendant  in  its  affirmative  de- 
fense, which  is  exhibit  No.  2  in  the  case,  but  do  find  from 
the  evidence  that  the  acts  performed  by  the  defendant  upon 
the  said  premises  of  the  plaintiffs  were  performed  with 
the  knowledge  and  consent  of  the  plaintiffs,  then  I  instruct 
you  that  the  plaintiffs  cannot  recover  for  such  acts  even 
though  in  your  opinion  the  plaintiffs  have  been  damaged 
thereby,  unless  you  find  froyn  the  evidence  that  defendant 
negligently  or  carelessly  performed  the  acts  and  hy  reason 
of  such  negligence  and  careless  performance  the  plaintiffs 
had  been  damaged." 


416  Trial  Practice  [Chap.  11 

The  latter  part  of  this  instruction  is  clearly  without  the 
issues  presented  by  the  pleadings.  The  action  was  prose- 
cuted by  the  respondents  solely  on  the  theory  that  the  acts 
complained  of  were  committed  without  their  knowledge  or 
consent  and  against  their  will,  and  all  their  testimony  was 
directed  toward  establishing  the  allegations  of  the  com- 
plaint and  proving  the  amount  of  the  resultant  damages. 
The  testimony  on  the  part  of  the  appellant,  on  the  other 
hand,  was  in  support  of  its  affirmative  defense,  and  in  re- 
duction of  the  claim  for  damages.  The  question  of  negli- 
gence in  the  prosecution  of  the  work  was  not  an  issue  in 
the  case  under  the  pleadings,  nor  was  it  made  an  issue 
at  any  stage  of  the  trial.  There  was  no  claim  that  any 
particular  act  committed  by  the  appellant  was  negligently 
or  carelessly  committed,  nor  was  there  any  attempt  to 
segregate  damages  resulting  from  negligence  from  dam- 
ages resulting  from  other  and  independent  causes.  The 
instruction  was  therefore  erroneous,  and  calls  for  a  re- 
versal of  the  judgment  unless  we  are  able  to  say  that  the 
error  was  not  prejudicial,  and  this  we  cannot  do.  There 
was  a  direct  conflict  in  the  testimony,  and  the  right  of  re- 
covery was  questionable  at  least.  The  jury  may  have  found 
that  the  acts  committed  by  the  appellant  were  so  com- 
mitted with  the  knowledge  and  consent  of  the  respondents, 
but  that  damages  resulted  from  the  performance  of  the 
work  in  a  manner  the  jury  deemed  negligent.  Under  such 
circumstances,  it  is  incumbent  on  this  court  to  order  a 
new  trial.  Bernliard  v.  Reeves,  6  Wash.  424,  33  Pac.  873; 
Comegys  v.  American  Lumber  Co.,  8  Wash.  661,  36  Pac. 
]087;"irir&?/  v.  Rainier-Grand  Hotel  Co.,  28  Wash.  705,  69 
Pac.  378.  In  Comegys  v.  American  Lumber  Co.,  supra, 
the  court  said: 

''This  instruction,  although  a  correct  statement  of  the 
law  in  a  proper  case,  was  not  pertinent  to  the  issues  to  be 
determined  by  the  jury.  The  plaintiff  in  his  complaint  had 
htatod  the  facts  constituting  his  cause  of  action  in  ac- 
cordance with  the  requirements  of  the  code,  and  the  cause 
of  action  stated  was  based  upon  an  express  contract,  and 
could  not  be  proved  by  showing  that  the  defendant  was 
guilty  of  a  tort.  The  question  as  to  whether  the  defendant 
had  converted  the  property  of  the  plaintiff  to  its  own  use, 
and  was,  therefore,  liable  for  its  value,  was  not  in  issue, 


Sec.  2]  Instructing  the  Juey  41? 

and  should  not  have  been  submitted  to  the  jury.  It  is  not 
in  accordance  with  either  the  letter  or  spirit  of  the  code 
to  permit  a  plaintiff  to  allege  one  state  of  facts  in  his 
complaint  and  to  recover  by  proof  of  an  entirely  different 
state  of  facts  at  the  trial." 

The  appellant  further  contends  that  the  court  erred  in 
ruling  on  the  competency  of  one  of  the  witnesses,  and  in 
refusing  to  grant  a  new  trial  for  insufficiency  of  the  evi- 
dence to  justify  the  verdict.  The  former  of  these  assign- 
ments is  without  merit  and  the  latter  is  obviated  by  the 
reversal  of  the  judgment  on  other  grounds. 

For  error  in  the  instructions  of  the  court,  the  judgment 
is  reversed  and  a  new  trial  ordered. 

Chadwick^  Fullerton,  Mount,  and  Crow,  J.  J.,  concur. 


KAERER  V.  CITY  OF  DETROIT. 

Supreme  Court  of  Michigan.    1905. 

142  Michigan,  331. 

[The  plaintiff  was  injured  by  running  his  automobile 
into  an  excavation  in  the  street  at  the  intersection  of  Mack 
avenue  and  Grand  Boulevard,  while  he  was  driving  north 
up  the  boulevard  at  night.  He  saw  a  red  light,  but  think- 
ing it  was  in  the  west  curb  of  the  boulevard  he  tried  to  pass 
to  the  east  of  it,  putting  on  power  for  the  purpose  and 
proceeding  at  the  rate  of  8  or  10  miles  an  hour.  In  fact 
the  light  was  at  the  west  end  of  a  trench  which  extended 
from  the  east  almost  across  the  boulevard.  When  the 
plaintiff  discovered  the  trench  he  was  going  too  fast  to 
stop  his  car,  which  went  into  the  excavation.]^ 

Hooker,  j,      *********** 

The  court  also  said  to  the  jury: 

"The  plaintiff  in  this  case  desires  me  to  say  that  the 
boulevard  is  used  especially  for  fast  riding  and  for  the  use 
of  automobiles,  and  I  think,  gentlemen  of  the  jury,  you 
may  take  that  in  consideration,  if  your  own  experience 
satisfies  you  of  that.     I  don't  remember  what  the  ordi- 

1  Statement  of  facts  by  the  editor. 
T.  P.— 27 


418  Teial  PkacticE  [Chap.  11 

nance  is  relative  to  that  particular  part  of  the  street,  but 
doubtless  some  of  you  do,  and  you  may  have  your  own  ex- 
perience with  reference  to  the  using  of  the  boulevard  for 
that  purpose;  but  I  think  the  whole  question,  gentlemen, 
as  to  the  degree  of  care,  becomes  a  question  for  you  rather 
than  for  the  court." 

This  was  in  effect  allowing  the  personal  knowledge  of  the 
jurors  to  have  the  weight  of  evidence  in  the  case.  It  con- 
templated not  only  their  determination  as  to  the  use  of 
the  boulevard  from  their  personal  observation,  but  also 
the  character  of  the  ordinances  relating  thereto.  This  was 
erroneous. 

The  judgment  is  reversed,  and  a  new  trial  ordered. 
MooEE,  C.  J.,  and  Carpentek  and  Montgomery,  J.  J., 
concurred  with  Hooker,  J. 


(b)     Emphasis  and  Disregard  of  Portions  of  Evidence. 

TRUSTEES  OF  SCHOOLS  V.  YOCH. 

Appellate  Court  of  Illinois.    1908. 

133  Illinois  Appellate,  32. 

Mr.  Presiding  Justice  Creighton  delivered  the  opinion 
of  the  court. 

This  was  an  action  in  case,  in  the  Circuit  Court  of  St. 
Clair  county,  by  appellants  against  appellees,  to  recover 
damages  alleged  to  have  resulted  to  appellants'  school 
house  and  premises  by  reason  of  the  failure  of  appellees 
to  leave  proper  and  sufficient  support  for  the  "superin- 
cumbent soil"  upon  which  tlie  school  house  stood.  Trial 
by  jury.  Verdict  in  favor  of  appellees.  Judgment  in  favor 
of  appellees  in  bar  of  action  and  for  costs,  and  ordering 
execution  to  issue  therefor. 

The  court  gave  to  the  jury  the  following  erroneous  in- 
structions on  behalf  of  appellee: 

''The  court  instructs  the  jury  that  if  you  believe,  from 


Sec.  2]  Instructing  the  Jury  419 

the  evidence,  that  the  pillars  in  said  mine  and  the  roof  in 
said  mine  are  intact  and  in  good  condition  under  the  plain- 
tiffs' premises  and  for  a  distance  of  three  hundred  feet 
beyond  and  adjacent  to  plaintiffs'  premises,  then  yot!  have 
a  right  to  take  this  fact  into  consideration  in  determining 
the  question  whether  the  defendants  have  caused  any  sub- 
sidence of  the  surface  of  plaintiffs'  land,  as  alleged  in 
plaintiffs'  declaration,  or  one  count  thereof,  if  you  believe 
from  the  evidence  there  has  been  any  subsidence  in  such 

surface. 

**********  )f 

The  instruction  first  above  quoted  contains  all  the  vices 
of  that  class  of  instructions  so  often  condemned  by  the 
courts  of  this  State.  It  singles  out  particular  facts  from 
the  other  facts  in  evidence  and  specially  directs  the  atten- 
tion of  the  jury  to  them.  This  instruction  bore  upon  a 
close  and  controverted  issue  of  fact  in  the  case  and  it  was 
equally  as  important  in  an  honest  effort  to  arrive  at  a  just 
verdict  that  the  jury  should  take  each  and  every  other 
pertinent  fact  in  evidence  ''into  consideration  in  determin- 
ing the  question  whether  the  defendants  have  caused  any 
subsidence  of  the  surface  of  plaintiffs'  land,"  as  it  was 
to  take  the  facts  particularly  singled  out  in  this  instruc- 
tion. All  the  evidence  admitted  bearing  upon  that  issue, 
was  admitted  for  the  consideration  of  the  jury,  and  it  was 
error  to  make  any  detached  portion  of  it  or  to  make  any 
fact  which  any  detached  portion  of  it  might  tend  to  prove, 
more  prominent  than  any  other  part  of  the  evidence,  or 
other  pertinent  fact.  This  instruction  gave  undue  prom- 
inence to  the  facts  specified,  and  magnified  their  import- 
ance, and  tended  to  divert  the  minds  of  the  jury  from  the 
main  issue. 

Counsel  suggest  in  support  of  this  instruction  that: 
''While  it  is  a  well-settled  and  long-established  rule  that 
an  instruction  should  not  single  out  and  call  attention  of 
the  jury  to  one  alleged  fact  more  than  another,  yet  this 
rule  is  subject  to  another  one,  that  each  party  is  entitled  to 
an  instruction  h}T)othetically  outlining  the  evidence  and 
state  of  the  case  upon  which  he  relies  for  obtaining  a  ver- 
dict, and  directing  the  jury  to  find  for  the  party  in  whose 
favor  they  find  the  facts  constituting  the  cause  of  action 
or  the  defense,"  and  cite;    Chicago  City  Ry.  Co.  v.  Math, 


420  Trial  Practice  [Chap.  11 

114  111.  App.  353,  and  West  Chicago  Street  Ry.  Co.  v. 
Dougherty,  170  111.  379.  The  instruction  in  the  case  at  bar 
is  not  of  the  class  of  instructions  discussed  in  either  of 
the  cases  cited.  It  does  not  hypothetically  outline  either 
the  evidence  or  the  facts  of  a  full  defense  and  direct  the 
jury  to  find  in  favor  of  the  defendants  in  case  they  find  the 
hypothesis  proven  by  the  evidence,  as  in  Chicago  City  Ry. 
Co.  V.  Math,  supra.  What  it  does  is  to  unduly  emphasize 
one  feature  of  a  supposed  defense.    ******** 

For  and  on  account  of  the  errors  in  this  opinion  noted, 
the  judgment  of  the  Circuit  Court  is  reversed  and  the 
cause  remanded. 

Reversed  and  remanded. 


TAUBERT  V.  TAUBERT. 

Supreme  Court  of  Minnesota.    1908. 
103  Minnesota,  247. 

Start,  C.  J. 

This  is  an  action  brought  by  a  young  man  seventeen 
years  old,  by  his  guardian,  against  his  mother,  to  recover 
damages  for  personal  injuries  which  he  claims  to  have  sus- 
tained while  in  her  employ  by  reason  of  her  negligence. 
Verdict  for  the  plaintiff  for  $5,000.  The  defendant  appeals 
from  an  order  of  the  district  court  of  the  county  of  Henne- 
pin denying  her  motion  for  judgment  notwithstanding  the 
verdict  or  for  a  new  trial.  The  record  discloses  the  fact 
that  the  action  was  defended  by  an  indemnity  company, 
wliich  had  issued  its  policy  to  the  defendant. 

The  assignments  of  error  raise  two  general  questions: 
(a)  Was  the  defendant  entitled  to  a  directed  verdict  in 
her  favor?  (b)  If  not,  was  she  entitled  to  a  new  trial  for 
errors  in  the  instructions  of  the  trial  court  to  the  jury? 

2.  Tliis  brings  us  to  the  question  whether  the  defend- 
ant is  entitled  to  a  new  trial  on  account  of  alleged  errors 
in  the  charge  of  the  court  to  the  jury.    The  defendant  urges 


Sec.  2]  Instkucting  the  Juey  421 

several  errors  in  the  instructions;  but  we  find  it  neces- 
sary to  consider  only  one  of  them. 

The  court  charged  the  jury  that:  "If  you  believe  the 
plaintiff's  testimony,  believe  that  it  is  true,  and  believe  that 
it  measures  up  to  the  law  as  I  have  defined  it  to  you,  he 
would  be  entitled  to  recover,  although  every  other  wit- 
ness in  the  case  had  lied."  It  is  claimed  that  this  was 
prejudicial  error.  It  was  certainly  error,  for  the  reason 
that  it  violated  the  well-settled  rule  that  it  is  error  for  a 
trial  court  in  its  instructions  to  a  jury  to  single  out  the 
testimony  of  a  designated  witness  and  lay  particular  stress 
upon  it,  in  cases  where  the  evidence  is  contradictory.  11 
Enc.  PI.  &  Pr.  185;  State  v.  Yates,  99  Minn.  461,  109  N.  VV. 
1070.  See  Wilkinson  v.  City  of  Crookston,  75  Minn.  184,  77 
N.  W.  797,  and  Harriott  v.  Holmes,  77  Minn.  215,  79  N.  W. 
1003.  The  reason  for  the  rule  is  obvious.  Each  party  to 
an  action  is  entitled  to  have  all  the  evidence  relevant  to 
the  issues  considered  fairly  by  the  jury,  and  this  right  is 
seriously  prejudiced,  if  not  defeated,  when  the  court  singles 
out  and  isolates  the  testimony  of  a  particular  party  or  wit- 
ness and  gives  to  it  undue  importance. 

It  is,  however,  urged  by  the  plaintiff  that  the  instruc- 
tion, even  if  erroneous,  was  not  prejudicial,  when  read  in 
connection  with  the  entire  charge.  It  is  true  that  the  jury 
were  instructed  that  they  should  give  fair  consideration  to 
all  of  the  testimony  in  the  case;  but  the  instruction  com- 
plained of  was  given  near  the  close  of  the  charge,  and  it 
was  terse,  clear,  specific,  and  mandatory  in  case  the  jury 
believed  the  plaintiff's  testimony.  It  in  effect  invited  the 
jury  to  first  inquire  whether  the  plaintiff's  testimony  was 
true,  and  directed  them  that,  if  they  so  found,  they  need 
not  concern  themselves  about  the  other  testimony  in  the 
case,  for  the  reason  that  if  the  plaintiff  had  told  the  truth 
he  was  entitled  to  recover.  Some  of  the  issues  of  fact  in 
this  case  were  close  ones  under  the  evidence,  and  we  are 
of  the  opinion  that  the  instruction  was  not  only  erroneous, 
but  i3rejudicial,  and  for  this  reason  a  new  trial  must  be 
granted. 

So  ordered. 


422  Trial  Practice  [Chap.  11 


M 'BRIDE  V.  DES  MOINES  CITY  RAILWAY 
COMPANY. 

Supreme  Court  of  Iowa.    1907, 

134  Iowa,  398. 

McLain,  C.  J. — The  facts  appearing  in  the  record  which 
are  essential  to  the  determination  of  the  questions  of  law 
raised  on  this  appeal  are  as  follows:  Plaintiff's  intestate 
was  a  member  of  the  paid  fire  department  of  the  city  of 
Des  Moines,  and  in  response  to  a  fire  alarm,  about  half 
past  ten  in  the  morning,  with  eight  other  members  of  the 
department,  he  started  on  a  hose  wagon  from  the  fire 
station  on  Eighth  street  going  north.  One  Nagle  was  the 
driver  of  the  wagon.  Plaintiff's  intestate  rode  in  his  proper 
place  on  a  running  board  or  step  on  the  west  side  of  the 
wagon,  facing  east  and  near  the  rear  end.  As  the  wagon 
approached  the  crossing  of  Grand  avenue  running  east  and 
west,  on  which  there  was  a  double  track  of  defendant's 
railway,  the  driver  saw  a  car  coming  from  the  west,  and 
without  checking  the  speed  of  the  wagon  drove  on  across 
the  track  on  which  the  car  was  approaching.  The  car 
struck  the  rear  wheel  on  the  west  side  of  the  wagon,  and 
deceased  was  violently  thrown  to  the  pavement  and  his 
skull  was  fractured.  From  this  injury  he  died  within  a 
few  hours. 

1.  After  stating  very  elaborately  and  in  great  detail  the 
claims  of  the  parties  as  to  the  facts  bearing  upon  the  ques- 
tion of  the  negligence  of  the  defendant's  motorman,  in 
charge  of  the  car  which  collided  with  the  hose  wagon  on 
which  plaintiff's  intestate  was  riding,  and  defining  negli- 
gence, the  court  instructed  the  ju^y  to  consider  '^ whether 
or  not  the  motorman  having  charge  of  the  running  and 
operating  of  the  car  in  question  was  negligent  or  not  in 
not  stopping  or  checking  the  speed  of  the  car  before  the 
collision  with  the  fire  hose  wagon  occurred";  and  he  then 
proceeded  to  detail  a  variety  of  circumstances  which  the 
evidence  for  plaintiff  tended  to  establish,  such  as  the  clear- 
ness and  calmness  of  the  day,  the  ringing  of  the  bell  on 
the  hose  wagon,  and  the  distance  at  which  such  bell  might 


Sec.  2]  Instbucting  the  Juby  423 

be  beard,  the  rate  of  speed  of  the  wagon,  etc.,  none  of  which 
were  controlling  on  the  question  of  the  motorman's  negli- 
gence. And  he  concluded  the  instruction  with  this  sen- 
tence : 

''After  carefully  considering  these  facts,  if  they  be  facts, 
and  all  other  facts  and  circumstances  proved  on  the  trial, 
if  you  believe  from  a  preponderance  of  the  evidence  that 
the  motorman  by  the  use  of  the  means  at  his  command 
could  have  stopped  the  car,  or  checked  the  speed  thereof, 
in  time  to  have  avoided  the  accident,  and  that  ho  failed  to 
do  so,  that  would  be  negligence  on  his  part;  and  his  negli- 
gence, if  he  was  so  negligent,  would  be  the  negligence  of 
the  defendant,  and  your  verdict  should  be  for  the  plaintiff, 
unless  you  find  the  deceased,  B.  McBride,  was  negligent, 
and  that  his  own  negligence  contributed  to  his  injury  in  any 
degree,  in  which  case  you  would  find  for  the  defendant." 

The  first  objection  urged  to  this  instruction  as  a  whole 
is  that  therein  the  court  called  to  the  attention  of  the  jury 
the  facts  which  the  evidence  tended  to  establish  favorable 
to  plaintiff's  recovery,  and  omitted  special  reference  to 
those  relating  to  defendant 's  theory  of  the  accident.  This 
objection  we  think  was  well  taken.  An  instruction  was 
asked  on  behalf  of  defendant,  calling  attention  to  other  cir- 
cumstances which  the  evidence  tended  to  establish,  which 
should  have  been  considered  as  bearing  on  the  motorman's 
negligence,  and  which  were  favorable  to  defendant's  con- 
tentions in  the  case.  It  was  clearly  improper  for  the  court 
to  thus  emphasize  the  circumstances  from  which  negli- 
gence might  be  inferred,  and  omit  any  reference  to  cir- 
cumstances tending  to  support  the  opposite  inference.  Per- 
haps the  court  might  properly  have  omitted  to  catalogue 
the  circumstances  which  the  testimony  tended  to  establish 
bearing  on  the  question  of  negligence,  and  simply  have  re- 
ferred in  a  general  way  to  the  facts  and  circumstances 
proved  on  the  trial.  But  in  suggesting  to  the  jury  that 
they  should  take  into  consideration  some  of  the  circum- 
stances which  were  favorable  to  the  plaintiff,  and  omitting 
reference  to  others  favorable  to  defendant,  he  put  the  case 
unfairly  to  the  jury. 

Another  serious  objection  to  the  instruction  is  that  the 
portion  thereof  above  set  out  withdraws  from  the  jury  the 


/424  Trial  Peactice  [Chap.  11 

question  whether  the  motorman  was  negligent  in  not  stop- 
ping the  car  or  checking  the  speed  thereof  in  time  to  have 
avoided  the  accident.  There  could  be  no  question  under 
the  evidence  as  to  the  ability  of  the  motorman  by  the  use 
of  the  means  at  his  command  to  stop  the  car  or  check  the 
speed  thereof  in  time  to  have  avoided  the  accident,  if  he 
had  endeavored  to  do  so  a  sufficient  length  of  time  before 
the  accident  occurred,  nor  was  there  any  doubt  that  he 
failed  to  stop  the  car  or  check  its  speed  so  as  to  prevent 
the  result  of  a  collision ;  and  the  court  specifically  instructs 
the  jury  that  this  ability  on  the  part  of  the  motorman  and 
his  failure  to  act  constituted  negligence.  The  real  ques- 
tion in  the  case  was,  not  whether  the  motorman  could  have 
stopped  the  car,  but  whether  he  was  negligent  in  not  doing 
so;  and  this  was  a  question  for  the  jury,  and  not  for  the 
court.  Had  the  evidence  shown  without  controversy  that 
the  motorman,  in  the  exercise  of  care,  could  and  should 
have  anticipated  the  collision  long  enough  beforehand  to 
enable  him  to  stop  the  car  or  check  its  speed  so  as  to  avoid 
the  accident,  then  the  instruction  might  have  been  correct. 
But  the  facts  were  in  dispute.  There  were  circumstances 
supporting  either  conclusion,  and  the  question  of  negli- 
gence should  have  been  left  to  the  jury. 

It  is  no  answer  to  this  position  to  say  that  in  the  first 
part  of  the  instruction  the  jury  were  told  that  they  must 
consider  whether  or  not  the  motorman  was  negligent  in  not 
stopping  or  checking  the  speed  of  the  car.  After  this  gen- 
eral statement,  the  court  proceeded  to  enumerate  a  large 
number  of  circumstances  indicating  that  the  motorman  was 
negligent,  and  then  told  the  jury  that  if  these  circum- 
stances were  found  to  be  established,  and  they  believed 
from  these  and  other  circumstances  proved  on  the  trial 
that  the  motorman  could  have  stopped  the  car,  he  was 
negligent.  It  was  not  the  physical  ability  of  the  motor- 
man  to  stop  or  check  the  speed  of  the  car  that  was  in  ques- 
tion, but  his  failure  to  use  due  care.  The  instructions  as 
a  whole  are  lengthy  and  intricate  in  their  statements,  and 
the  one  now  specially  under  consideration  is  particularly 
obscure,  and  the  bald  statement  at  its  conclusion  that  the 
motorman  was  negligent  if  he  could  have  stopped  or 
checked  the  speed  of  the  car  in  time  to  avoid  the  accident, 


Sec.  2]  Instructing  the  Jury  425 

and  failed  to  do  so,  may  very  well  have  been  seized  upon 
by  the  jury  as  the  solution  of  the  whole  difficulty.  We 
reach  the  conclusion  that  in  the  two  respects  pointed  out 
the  instruction  was  erroneous  and  misleading. 

For  the  errors  pointed  out  in  the  first  division  of  this 
opinion,  the  judgment  is  reversed. 


SEABOAED  &  ROANOKE  EAILROAD  COMPANY  V. 
JOYNER'S  ADM'R. 

Supreme  Court  of  Appeals  of  Virginia.    1895. 

92  Virginia,  354. 

Keith,  P.,  delivered  the  opinion  of  the  court. 

This  is  an  action  of  trespass  on  the  case,  brought  in  the 
Circuit  Court  of  the  county  of  Southampton  by  Joyner's 
administrator  against  the  Seaboard  and  Roanoke  Rail- 
road Company,  to  recover  damages  for  the  death  of  the 
plaintiff's  intestate,  caused,  as  alleged,  by  the  negligence 
of  the  defendant  company.  *  *  * 

Nor  is  there  any  error  in  the  refusal  of  the  court  to 
grant  the  instruction  asked  for  by  the  plaintiff  in  error,  and 
set  out  in  Bill  of  Exceptions  No.  3,  which  is  in  the  follow- 
ing words: 

''The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  Sinclair  Joyner  went  upon  the  track  of 
the  defendant  company  without  its  consent,  and  placed 
himself  thereon  in  such  a  position  as  to  be  struck  by  a 
train,  then  the  said  Joyner  was  a  trespasser,  and  guilty  of 
such  contributory  negligence  as  will  prevent  a  recovery  by 
his  administrator  in  this  action,  unless  the  jury  further  be- 
lieve that  the  accident  was  caused  by  the  willful  negli- 
gence of  the  company." 

It  will  be  observed  that  the  hypothetical  case  upon  which 
this  instruction  is  predicated  omits  any  reference  to  evi- 
dence upon  the  part  of  both  plaintiff  and  defendant  tend- 


426  Trial  Practice  [Chap.  11 

ing  to  prove  that  before  the  accident  occurred  the  engineer 
became  aware  of  the  dangerous  position  of  Joyner.  The 
engineer  himself  admits  that,  when  he  had  approached  to 
within  sixty  yards  of  Joyner,  he  recognized  that  the  object 
near  the  track  was  not  an  abandoned  tie,  as  he  had  sup- 
posed, but  a  man,  and  that  as  soon  as  he  made  the  dis- 
covery he  used  all  proper  efforts  to  avert  the  catastrophe. 
The  evidence  upon  the  part  of  the  defendant  in  error  tends 
to  prove  that  when  at  a  much  greater  distance  from  the 
body  of  the  deceased,  warning  of  danger  was  given,  which 
it  was  the  duty  of  the  engineer  to  heed,  but  did  not.  In  any 
aspect  of  the  case,  whether  in  that  presented  by  the  plain- 
tiff or  defendant,  here  was  a  most  material  fact  for  the 
consideration  of  the  jury,  upon  their  determination  of 
which,  under  proper  instructions,  depends  their  reaching 
a  just  conclusion  in  this  case.  There  may  be  a  state  of 
facts  under  which  the  instruction  as  presented  would  be 
good  law,  but,  upon  the  evidence  set  out  in  this  record,  its 
tendency  was  to  mislead  the  jury,  and  it  was  properly  re- 
jected by  the  court. 

We  think  the  judgment  of  the  Circuit  Court  is  without 
error,  and  should  be  affirmed. 


BOYCE  V.  CHICAGO  &  ALTON  RAILROAD 
COMPANY. 

Court  of  Appeals  of  Missouri.    1906. 

120  Missouri  Appeals,  168. 

Broaddus,  p.  J. — This  is  a  suit  for  damages  for  negli- 
gence. The  facts  of  the  case  are  as  follows.  On  the  even- 
ing of  October  16,  1903,  the  plaintiff,  in  company  with  her 
danghter-in-law,  Mrs.  Dorothy  Boyce,  started  to  go  to  the 
opera  house  in  the  town  of  Odessa.  They  took  the  usual 
route  on  the  south  side  of  Mason  street,  which  crosses  the 
defendant's  track  at  its  station.  When  they  got  to  de- 
fendant's tracks,  they  stopped  and  waited  for  a  passenger 


Sec.  2]  Instructing  the  Jury  427 

train  to  go  by.  They  also  saw  a  freight  train  standing  on 
the  passing  track,  which  was  cut  in  two  to  allow  the  passing 
of  traffic  on  the  street,  which  crossed  the  track  parallel 
with  the  sidewalk,  and  to  enable  foot  passengers  to  con- 
tinue their  journey.  At  this  opening  of  the  train  they 
saw  a  man  dressed  in  overalls  with  a  railroad  lantern  in 
his  hand,  who  appeared  to  be  connected  with  the  train,  who 
told  them  they  ''could  cross  if  they  wanted  to."  Where- 
upon plaintiff  started  to  cross  the  tracks,  at  which  time 
the  train  began  to  move,  which  alarmed  her,  and  in  order 
to  prevent  being  crushed  between  the  cars  when  they  came 
together  she  got  off  the  sidewalk  onto  the  streetway,  trod 
upon  a  stone,  fell  to  the  ground,  but  got  up  in  time  to 
get  out  of  the  way  of  the  mo\dng  cars.  She  did  not  dis- 
cover that  she  was  injured  until  she  got  to  the  opera  house, 
when  she  says  she  felt  a  pain  in  her  ankle,  which  according 
to  the  evidence  turned  out  to  be  a  severe  sprain. 


The  defendant  asked  an  instruction,  which  was  refused, 
to  the  effect  that  if  the  woman,  who  was  with  plaintiff,  saw 
that  the  train  was  about  to  move  and  warned  her  not  to 
proceed,  and  that  thereafter  she  persisted  in  attempting  to 
cross  the  track  ahead  of  the  moving  train,  the  finding  should 
be  for  defendant.  The  vice  of  the  instruction  is  that  it 
singles  out  particular  facts,  to  the  exclusion  of  other  facts, 
upon  which  the  jury  are  authorized  to  find  a  verdict.  This 
left  out  of  consideration  the  fact  that  plaintiff  had  already 
started  to  make  the  passage  and,  such  being  the  case,  it 
was  a  question  for  the  jury  to  say  whether  it  was  safest  for 
her  to  proceed  or  turn  back.  We  all  know  from  experi- 
ence that  in  case  of  danger  it  is  sometimes  a  question 
whether  it  is  safer  to  proceed  or  to  retreat.  And  the  law 
will  not  place  a  strict  construction  upon  the  acts  of  a  per- 
son in  such  a  situation  because  of  want  of  time  for  deliber- 
ation, and  because  the  imminence  of  peril  is  calculated  to 
confuse  the  judgment.  It  was  a  question  for  the  jury  to 
say  whether  she  acted  in  a  reasonable  and  prudent  manner 
under  the  circumstances. 

[Reversed  on  other  grounds.] 


428  Trial  Practice  [Chap.  11 


LIFE  INSURANCE  COMPANY  OP  VIRGINIA  V. 
HAIRSTON. 

Supreme  Court  of  Appeals  of  Virginia.    1908. 

108  Virginia,  832. 

Error  to  a  judgment  of  the  Circuit  Court  of  the  city  of 
Roanoke  in  an  action  of  assumpsit.  Judgment  for  the 
plaintiff.    Defendant  assigns  error. 

Reversed. 
(Instructions  given  on  motion  of  the  plaintiffs.) 
*'(1).  The  court  instructs  the  jury,  that  although  you 
may  believe  from  the  evidence  that  the  deceased  was  found 
the  evening  of  his  death,  having  convulsions,  and  that  he 
continued  to  have  them  until  he  died,  and  that  strychnine 
was  found  in  his  stomach,  this  alone  is  not  suflficient  to 
prove  suicide.  The  defendant  company  must  go  further 
and  show  that  the  deceased  intentionally  and  willfully  for 
the  purpose  of  committing  suicide,  took  strychnine,  and 
this  must  be  shown  by  such  evidence  as  will  exclude  every 
reasonable  supposition  of  accidental  death,  and  unless  this 
is  so  shown  from  all  the  evidence  you  must  find  for  the 
plaintiff  on  the  issue  of  suicide. 

Keith,  P.,  delivered  the  opinion  of  the  court. 

S.  W.  Hairston,  as  the  next  friend  of  certan  infants,  re- 
covered a  judgment  against  the  Life  Insurance  Company 
of  Virginia  in  the  Circuit  Court  of  the  city  of  Roanoke; 
and  upon  the  petition  of  the  defendant  company  the  record 
is  now  before  us  to  review  certain  rulings  of  the  trial 
court. 

On  the  6th  of  February,  1906,  the  company  issued  a 
policy  of  insurance  upon  the  life  of  David  Peter  Willis, 
the  father  of  the  infant  plaintiffs,  in  consideration  of  the 
application  for  said  policy,  which  is  made  a  part  thereof, 
and  upon  condition  that  the  quarterly  annual  premium  of 
$20.41  should  be  paid  in  advance  on  the  delivery  of  said 
policy,  which  the  declaration  alleges  was  duly  paid.  It  is 
also  averred  that  Willis  died  on  the  23rd  of  March,  1906, 
while  the  policy  was  in  force;  that  due  proof  of  his  death 


Sec.  2]  Instructing  the  Jury  429 

had  been  furnished  the  defendant;  that  all  the  conditions 
of  the  policy  had  been  complied  with ;  and  that,  neverthe- 
less, the  defendant  refused  to  pay  it. 

We  come  now  to  the  instructions  given  and  refused  at 
the  trial. 

Instruction  No.  1  given  on  behalf  of  the  plaintiff  is 
erroneous,  in  this,  that  it  is  predicated  upon  only  a  por- 
tion of  the  facts  shown  in  evidence,  bearing  upon  the  ques- 
tion of  suicide.  It  is  proper  for  the  court  to  tell  the  jury 
what  is  the  law  as  applied  to  a  hypothetical  statement  of 
facts,  but  that  statement  must  present  the  case  shown  in 
evidence  fairly  to  the  jury.  The  instruction  under  consid- 
eration tells  the  jury,  that  if  the  deceased  on  the  evening 
of  his  death  was  found  in  convulsions  which  continued  until 
he  died,  and  that  strychnine  was  discovered  in  his  stomach, 
this  alone  is  not  sufficient  to  prove  suicide.  Another  in- 
struction then  might  have  been  given  presenting  another 
part  of  the  evidence,  in  which  the  jury  might  with  pro- 
priety be  told  that  it  was  insufficient  to  warrant  a  con- 
viction; while,  if  all  the  facts  had  been  grouped  in  one 
instruction,  a  wholly  different  conclusion  should  have  been 
reached. 

The  tendency  of  such  a  method  of  presenting  the  facts 
of  a  case  to  the  jury  is  to  distract  and  mislead  them,  and 
the  court  should  content  itself  with  giving  the  jury  general 
principles  of  law  and  leaving  them  to  apply  those  prin- 
ciples to  the  facts  in  evidence  before  them,  or  else  it  should 
be  careful,  if  it  prefers  to  present  a  hypothetical  case  to 
the  jury,  to  put  before  the  jurors  all  the  facts  bearing  upon 

the  issue  which  the  evidence  proves  or  tends  to  prove. 

********** 

The  judgment  of  the  circuit  court  must  be  reversed,  the 
verdict  of  the  jury  set  aside,  and  the  case  remanded  for  a 
trial  to  be  had  in  accordance  with  the  views  herein  ex- 
pressed. 

Reversed. 


430  Trial  Practice  [Chap.  11 


Section.  3.    Form  of  Instructions. 

MUEPHY  V.  CENTRAL  OF  GEOEGIA  EAILWAY 

COMPANY. 

Supreme  Court   of  Georgia.    1910, 

135  Georgia,  194. 

Beck,  J.  The  dispute  between  the  parties  in  this  case 
is  over  a  strip  of  land  20  feet  in  width  and  about  1,381  feet 
in  length  extending  from  Glenn  street  on  the  north  to 
Shelton  street  on  the  south,  in  the  City  of  Atlanta,  the 
issue  being  as  to  whether  the  same  constitutes  the  eastern 
edge  of  a  100-foot  right  of  way  of  the  defendant  railroad 
company  or  the  western  third  of  a  60-foot  public  road  for 
said  distance.  The  plaintiff,  in  1881,  acquired  title  to  the 
lands  l.^'ing  east  of  and  abutting  on  the  strip  of  land  in  dis- 
pute. He  alleged,  that  at  that  time  this  20-foot  strip  was 
a  road  traveled  by  the  public,  and  had  been  so  used  for 
more  than  twenty  years;  that  in  1884,  upon  petition  of 
citizens,  the  commissioners  of  roads  and  revenues  of  Ful- 
ton county  passed  an  order  formally  opening  and  accept- 
ing the  same  as  a  public  road ;  that  upon  the  passing  of 
this  order  the  petitioner  and  other  abutting  landowners  on 
the  east,  desiring  that  the  road  in  front  of  their  property 
should  be  60  feet  in  width,  dedicated  an  additional  40-foot 
strip  for  that  purpose,  adjoining  said  20-foot  road;  that 
the  county  authorities  took  charge  of  and  worked  the  entire 
60-foot  road ;  and  that  the  same  has  ever  since  been  a  pub- 
lic road.  A  short  time  prior  to  the  bringing  of  this  suit 
the  defendant  railroad  company  began  changing  the  grade 
of  the  20-foot  strip  in  question  and  laying  its  tracks  there- 
on, and  the  plaintiff  filed  suit  to  enjoin  any  further  inter- 
ference with  the  alleged  60-foot  road  in  front  of  his  lands 
and  the  use  of  any  portion  of  same  by  the  defendant  as 
its  right  of  way. 

It  is  complained  that  the  court  erred  in  refusing  a  writ- 
ten request  to  give  in  charge  to  the  jury  the  following: 
"Any  uninterrupted  use  by  the  public  generally  of  lands 


Sec.  3]  Instructing  the  Juey  431 

as  a  roadway  for  a  period  of  time  extending  througli  20 
years,  accompanied  by  acceptance  by  public  authorities, 
gives  a  prescriptive  right  to  the  public  to  such  road  or 
highway."  We  do  not  think  that  the  failure  of  the  court 
to  instruct  the  jury  in  the  language  of  the  request  was 
error.  It  is  manifest  that  the  charge  which  the  court  re- 
fused to  give  is  ambiguous.  It  is  susceptible  of  two  con- 
structions. First,  it  might  be  construed  to  mean  that  an 
uninterrupted  use  by  the  public  generally  of  lands  as  a 
roadway  for  a  period  of  time  extending  through  twenty 
years,  accompanied  by  acceptance  by  the  public  authorities 
extending  through  that  period  of  time,  from  the  beginning 
to  the  end  thereof,  would  give  a  prescriptive  right  to  the 
public  to  such  road.  Second,  it  might  be  construed  to 
mean  that  an  uninterrupted  use  by  the  public  generally  of 
the  strip  of  land  in  question  as  a  roadway  for  a  period  of 
time  extending  through  20  years  and  acceptance  by  the 
public  authorities  at  any  time  within  that  20  years,  even 
at  or  near  the  close  of  that  period,  would  give  a  prescrip- 
tive right  to  the  public  to  such  road.  These  two  construc- 
tions embody  very  different  statements  of  the  law  upon  the 
question  involved.  If  the  first  construction  which  might 
have  been  placed  upon  the  written  request  was  the  state- 
ment of  the  law  desired  by  counsel  offering  the  request  to 
charge,  then  the  principle  embodied  in  the  request  was  suf- 
ficiently covered  by  the  charge  as  given;  and  as  the  court 
might  fairly  have  placed  this  construction  upon  the  written 
request,  he  should  not  be  held  to  have  committed  error  in 
refusing  to  give  another  charge  upon  a  subject  which  was 
already  sufficiently  covered  by  his  charge  as  given.  If 
counsel  had  desired  a  charge  laying  down  the  doctrine  as 
stated  in  the  second  eonstruction  of  the  written  request,  he 
should  have  framed  it  in  terms  more  aptly  embodying  the 
principle   which   he   sought   to  have   incorporated  in   the 

court's  instructions. 

********** 

Judgment  affirmed.    All  the  Justices  concur. 


432  Trial  Practice  [Chap.  11 


PARKER  V.  NATIONAL  MUTUAL  BUILDING  & 
LOAN  ASSOCIATION. 

Supreme  Court  of  Appeals  of  West  Virginia.    1904. 

55  West  Virginia,  134. 

PoFFENBARGER,  President : 

********** 

Bill  of  exceptions  No.  4  contains  all  the  instructions  in 
the  record.  The  argument  and  references  in  the  bill  of  ex- 
ceptions seem  to  proceed  upon  the  theory  of  two  instruc- 
tions. "Whether  given  as  one  or  as  two  is  unimportant. 
The  matter  is  set  out  in  the  bill  of  exceptions  as  follows: 
**The  court  instructs  the  jury  that  where  an  agent  is  em- 
ployed to  sell  real  estate  for  his  principal  if  the  agent  was 
the  procuring  cause  of  the  sale  of  said  real  estate  the  agent 
is  entitled  to  his  commissions,  without  regard  to  the  extent 
of  his  exertions,  and  although  the  contract  commenced  by 
said  agent  was  consummated  by  the  principal  himself  or 
through  the  intervention  of  another;  and  the  court  further 
instructs  the  jury  that  where  a  broker  or  agent  employed 
to  negotiate  a  sale  procures  a  customer  for  the  sale  of  the 
said  property  on  the  terms  proposed  by  the  owner  and  the 
principal  takes  the  further  proceedings  out  of  the  hands 
of  the  broker,  and  completes  the  sale  himself,  the  agent  is 
nevertheless  entitled  to  his  commissions,  and  the  principal 
cannot  deprive  him  of  his  rights  to  compensation  by  a  dis- 
charge before  the  sale  is  consummated,  and  this  is  true 
where  the  principal  completes  the  contract  with  the  cus- 
tomer presented  by  the  broker  on  different  terms  from 
those  stipulated  to  the  broker." 

The  legal  propositions  stated  by  these  instructions  are 
no  doubt  correct,  but  they  are  purely  abstract.  They  make 
no  reference  whatever  to  the  evidence,  nor  do  they  submit 
to  the  jury  the  finding  from  the  evidence  of  the  facts  giving 
rise  to  the  law  enunciated  in  them.  One  of  them  says: 
"Where  a  broker  or  agent  employed  to  negotiate  a  sale 
procures  a  customer  for  the  sale  of  said  property  on  the 
terms  proposed  by  the  owner,  and  the  principal  takes  the 
further   proceedings   out   of   the    hands   of   the   broker," 


Sec.  3]  Instructing  the  Jury  433 

etc.,  the  broker  is  entitled  to  his  commission.  Had  the 
court  given  this  instruction  in  the  concrete  instead  of  the 
abstract  form  it  would  have  said:  **If  the  jury  believe 
from  the  evidence  that  the  defendant  employed  the  plain- 
tiff to  sell  the  property  mentioned  in  the  evidence  at  a  cer- 
tain price,  and  agreed  to  pay  him,  in  case  he  made  such 
sale,  a  commission,  and,  in  pursuance  thereof,  the  plaintiff 
procured  a  customer  for  the  sale  of  the  property  on  the 
terms  fixed  by  the  defendant,  and  the  defendant  prevented 
him  from  making  the  sale  by  interfering  and  consummating 
the  sale  himself  with  the  customer,  they  should  find  for  the 
plaintiff."  This  would  have  directed  the  minds  of  the  jury 
to  the  facts  necessary  to  be  ascertained  by  them  in  order 
to  reach  a  proper  conclusion.  An  instruction  for  the  de- 
fendant embodying  the  same  proposition  of  law  might  have 
been  given,  and  in  it  the  jury  would  have  been  told,  in  sub- 
stance, that  if  the  plaintiff,  acting  under  such  contract  of 
employment,  failed  to  procure  such  a  purchaser,  they 
should  find  for  the  defendant.  Instructions  should  apply 
the  law  to  the  facts  in  the  case.  ''It  is  not  the  proper 
course  for  the  judge  to  lay  down  the  general  principles  of 
law  applicable  to  a  case,  and  leave  the  jury  to  apply  them ; 
but  it  is  his  duty  to  inform  them  what  the  law  is  as  ap- 
plicable to  the  facts  of  the  case.  An  instruction,  however 
pertinent  and  applicable  it  may  be,  is  abstract  unless  it 
be  made  to  apply,  in  express  terms,  either  to  the  attitude 
of  the  parties  or  to  the  very  facts  in  issue."  Blashfield  on 
Instr.  s.  92.  ''It  is  not  the  province  of  the  judge  to  impress 
any  particular  view  of  the  facts  upon  the  jury,  but  it  is 
his  province  to  make  his  charge  so  directly  applicable  to 
the  facts  as  to  enable  the  jury  to  render  a  correct  verdict. 
To  leave  as  little  room  as  possible  for  them  to  make  mis- 
takes in  applying  the  law  to  the  facts,  which  they  may  be 
very  liable  to  do  when  they  have  only  general  abstract 
propositions  given  to  them  in  charge,  there  ought,  if  pos- 
sible, to  be  no  room  for  misunderstanding  the  charge  or  its 
application,  and  to  this  end  it  ought  to  be  specific  and  di- 
rect." East  Tennessee  V.  (§  G.  R.  Co.  v.  Toppins,  10  Lea. 
(Tenn.)  64.  "Courts  should  apply  the  principles  to  the 
facts  in  evidence,  stating  the  facts  hypothetically."  Blash- 
field on  Instr.  s.  92. 
T.  p.— 28 


434  Trial  Practice  [Chap.  11 

Whether  the  legal  proposition  should  have  been  in  both 
forms,  or  only  one  of  them,  depends  upon  whether  or  not, 
looking  at  the  evidence  introduced,  the  court  could  say 
there  was  room  or  ground  for  either  of  the  two  conclusions 
presented,  dependent  upon  an  issue  of  fact  to  be  deter- 
mined by  the  jury.  If  there  is  no  evidence  whatever  upon 
which  one  of  the  conclusions  may  stand,  there  is  no  reason 
for  giving  an  instruction  embodying  the  hypothesis  upon 
which  it  is  based,  nor  can  the  court  do  so  except  at  the  risk 
of  confusing  and  misleading  the  jury.  The  statement  of 
the  principle  without  any  application  of  it  to  the  facts  or 
direction  to  the  jury  as  to  what  facts  they  should  look  for 
in  the  evidence,  is  even  more  likely  to  mislead  for  the 
reason  that,  in  the  effort  to  apply  it,  they  are  called  upon 
by  the  court  to  wrestle  with  both  the  law  and  the  facts  and 
form  for  themselves  the  hypothesis  upon  which  the  con- 
clusion depends,  and  it  leaves  room  for  the  jury  to  form 
two,  where  there  may  be  no  evidence  whatever  to  support 
one  of  them.  That  is  exactly  what  has  occurred  here.  No 
evidence  of  the  performance  of  the  contract  proved  was  be- 
fore the  jury.  The  instructions  raised  and  presented  to  the 
jury  a  question  which  had  no  root  or  foundation  in  the  evi- 
dence. Hence,  it  could  perform  no  function  except  to  mis- 
lead the  jury. 

On  account  of  the  misleading  character  of  the  instruc- 
tions given  and  the  want  of  sufficient  evidence  to  support 
the  verdict,  the  judgment  must  be  reversed,  the  verdict  set 
aside,  a  new  trial  granted,  and  the  case  remanded. 

Reversed. 


WEST  KENTUCKY  COAL  COMPANY  V.  DAVIS. 

Court  of  Appeals  of  Kentucky.    1910. 

138  Kentucky,  667. 

Opinion  of  the  court  by  Wm.  Rogers  Clay,  Commissioner. 
Reversing. 


Sec.  3]  Instructing  the  Juey  435 

Appellee,  J.  B.  Davis,  instituted  this  action  against  ap- 
pellant, West  Kentucky  Coal  Company,  to  recov^er  dim^'ges 
for  personal  injuries  alleged  to  have  been  caused  by  appel- 
lant's negligence.  The  trial  in  the  lower  court  resulted  in 
a  verdict  and  judgment  in  favor  of  appellee  for  the  sum  of 
$1,600.  To  reverse  that  judgment  this  appeal  is  prose- 
cuted. 

The  appellant  is  a  corporation  operating  a  coal  mine 
near  the  town  of  Sturgis,  Union  county,  Ky.  It  also  owns 
and  operates  a  mine  at  Wheatcroft,  and  at  one  or  two 
other  places.  In  connection  with  these  mines  it  owns  and 
operates  a  railroad.  Under  appellant's  tipple,  there  are 
three  railroad  tracks  upon  which  cars  are  transported  and 
placed  for  the  purpose  of  loading.  These  tracks  are  known 
as  tracks  Nos.  1,  2,  and  3.  The  engine  which  appellant 
operates  was  taken  daily  down  track  No.  1  to  the  scale- 
house;  thence  it  was  run  up  track  No.  2  to  the  tipple  for 
the  purpose  of  coaling  before  beginning  its  regular  opera- 
tions for  the  day.  On  the  occasion  in  question,  those  in 
charge  of  the  engine  backed  it  down  to  the  scale  house  on 
track  No.  1;  thence  up  track  No.  2,  where  appellee  was  at 
work  at  the  tipple.  It  was  appellee's  duty  to  check  the 
cars,  and  see  that  they  were  properly  loaded.  When  the 
engine  arrived  at  the  tipple,  it  pushed  the  car  which  ap- 
pellee was  loading  out  of  the  way,  placed  its  tender  upon 
the  tipple,  and  received  its  coal.  It  then  went  back,  placed 
a  partially  loaded  car  in.  position,  and  proceeded  to  the 
scale-house.  It  was  standing  there  when  appellee  resumed 
his  labors  of  loading  the  car  on  track  No.  2.  According  to 
its  usual  custom,  the  engine  then  started  up  track  No.  1, 
pushing  an  empty  car.  While  it  was  proceeding  in  the 
direction  of  appellee,  the  car  which  the  latter  was  loading 
on  track  No.  2  became  unmanageable.  When  this  took 
place,  appellee's  assistant  jumped  upon  the  car  for  the 
purpose  of  stopping  it.  Appellee  stepped  back  and  moved 
up  the  track  for  the  purpose  of  notif>dng  the  tipple  men  to 
stop  the  machinery.  There  was  a  distance  of  four  or  five 
feet  between  tracks  No.  1  and  No.  2.  When  appellee  rose 
up  and  stepped  backward  to  give  the  tipple  man  the  re- 
quired notice,  he  came  in  contact  with  the  car  which  was 
being  pushed  by  the  engine  up  track  No.  1,  and  was  in- 


436  Trial  Practice  [Chap.  11 

jured.  The  evidence  shows  that  there  was  a  flagman  on 
the  front  end  of  the  car  that  was  being  pushed  by  the 
engine.  His  testimony  is  to  the  effect  that  appellee  backed 
into  the  car  so  suddenly  that  it  was  impossible  to  stop  the 
train  after  his  peril  was  discovered.  There  was  evidence 
to  the  effect  that  the  whistle  was  not  blown  nor  the  bell 

rung  as  the  engine  approached  the  place  of  accident. 

********** 

The  instructions  complained  of  are  as  follows: 
**(1)  Gentlemen  of  the  jury,  the  court  instructs  you 
that  it  was  the  duty  of  the  defendant's  employee  in  charge 
of  the  engine  and  cars  attached  thereto  at  the  time  and 
place  in  question  to  exercise  ordinary  care,  as  hereinafter 
defined,  in  running  and  operating  the  same  so  as  to  pre- 
vent injury  to  its  employes;  so,  if  you  shall  believe  from 
the  evidence  that  defendant's  said  employes  in  charge  of 
said  engine  and  cars  failed  to  exercise  such  care  as  above 
required,  but  negligently  ran  said  cars  against  the  plain- 
tiff, thereby  injuring  him,  while  plaintiif  was  exercising 
ordinary  care,  as  hereinafter  defined,  for  his  own  safety, 
if  he  was  then  doing  so,  then  in  that  event  you  should  find 
for  the  plaintiff  and  award  to  him  such  an  amount  in  dam- 
ages as  will  fairly  and  reasonably  compensate  him  on  ac- 
count of  any  mental  and  physical  suffering  endured  by 
him  as  a  direct  result  of  such  injury,  if  any,  and  also  for 
the  reasonable  value  of  the  time  necessarily  lost  from  his 
business  on  account  thereof,  if  any,  and  also  for  any  per- 
manent reduction  in  his  power  to  earn  money,  if  any,  as 
was  the  direct  result  of  such  injury,  not  exceeding  the  sum 
of  $2,000,  the  amount  claimed  in  the  petition.  But  unless 
you  shall  so  find  and  believe  from  the  evidence  as  above 
required,  you  must  find  for  the  defendant." 

''(4)  The  court  further  instructs  you  that  it  was  like- 
wise the  duty  of  the  plaintiff  performing  his  duties  and 
doing  the  work  in  question  to  exercise  ordinary  care  for 
his  own  safety,  and,  although  you  may  believe  from  the 
evidence  that  the  defendant's  said  employe  was  at  said 
time  negligent  and  careless,  yet  if  you  shall  also  believe 
from  the  evidence  that  plaintiff  at  said  time  when  he  was 
injured  was  also  careless  or  negligent,  and  that  but  for  his 
own  carelessness   or  negligence  the  accident   and  injury 


Sec.  3]  Instbucting  the  Jury  437 

would  not  have  occurred,  then  in  that  event  you  should  find 
for  the  defendant." 

It  will  be  observed  that  the  instructions  complained  of 
do  not  present  to  the  jury  the  reciprocal  duties  of  appellant 
and  apjDellee.  They  are  so  general  and  abstract  in  form 
as  to  make  the  jury  the  judges  of  both  the  law  and  the 
facts.  Smith  v.  Cornett,  38  S.  W.  689, 18  Ky.  Law  Rep.  818 ; 
C.  N.  0.  (&  T.  P.  Rij.  Co.  V.  EilVs  Adm'r,  89  S.  W.  523,  28 
Ky.  Law  Rep.  530.  The  jury  may  have  concluded  that  cer- 
tain acts  constitute  negligence,  when,  as  a  matter  of  fact, 
such  was  not  the  case.  That  this  conclusion  is  sound  may 
be  gathered  from  the  fact  that  one  witness  was  permitted 
to  testify  that  the  car  which  struck  appellee  was  not 
equipped  with  a  fender  or  pilot ;  indeed,  much  stress  is  laid 
upon  this  fact  in  appellee's  brief.  Doubtless  it  was  com- 
mented upon  by  counsel  in  their  argument  to  the  jury.  We 
can  not,  then,  say  that  the  jury  were  not  influenced  by  this 
fact  in  returning  a  verdict  in  favor  of  appellee.  Certainly 
the  failure  of  appellant  to  e-quip  the  car  in  question  with  a 
fender  or  pilot  was  not  negligence.  To  so  hold  would  be 
to  impose  upon  appellant  a  greater  liability  than  has  ever 
been  imposed  upon  ordinary  railroads,  and  would  almost 
defeat  the  practical  operation  of  its  engines  and  cars. 

Nor  do  we  think  the  failure  of  appellant  to  offer  more 
specific  instructions  than  those  given  deprived  it  of  its 
right  to  complain.  The  rule  is  that  in  civil  cases  the  court 
is  only  required  to  give  such  instructions  as  are  offered  by 
the  parties.  If,  however,  an  instruction  offered  is  defective 
in  form  or  substance,  the  court  should  prepare,  or  direct 
the  preparation  of  a  proper  instruction  on  the  point  at- 
tempted to  be  covered  bv  the  instruction  offered.  L.  &  N. 
R.  R.  Co.  V.  Barrod,  lis  Ky.  877,  75  S.  W.  233,  25  Ky. 
Law  Rep.  250;  A^ico^a  Bros.  v.  Hurst,  88  S.  W.  1081,  28  Ky. 
Law  Rep.  87.^ 

But  when  no  instructions  are  requested  by  either  party, 
and  the  court  on  its  own  motion  undertakes  to  instruct  the 
jury,  the  instructions  so  far  as  they  go  should  present  cor- 
rectly the  law  of  the  case.  Soitth  Corinqton  £  Cincinnati 
Street  By.  Co.  v.  Core,  96  S.  W.  562,  29  Ky.  Law  Rep. 
836 ;  Sivope  v.  Scliafer,  4  S.  W.  300,  9  Ky.  Law  Rep.  160 ; 
Turner,  Jr.  v.  Terrill,  97  S.  W.  396,  30  Ky.  Law.  Rep.  89. 


438  Trial  Practice  [Chap.  11 

Upon  the  next  trial  of  the  case  the  court  will  instruct 
the  jury  as  follows : 

"It  was  the  duty  of  the  defendant's  agents  in  charge  of 
its  engine  and  cars  on  the  occasion  in  question  to  give  rea- 
sonable warning  of  the  approach  of  the  train  by  blowing 
the  whistle  or  ringing  the  bell,  and  to  keep  a  reasonable 
lookout  in  front  of  the  train  as  it  was  moved.  It  was  the 
duty  of  the  plaintiff  to  exercise  reasonable  care  to  watch 
for  the  approaching  train  and  keep  out  of  its  way.  If  you 
believe  from  the  evidence  that  a  reasonable  warning  of  the 
approach  of  the  train  was  not  given  or  a  reasonable  look- 
out was  not  kept,  and  that  by  reason  of  this  plaintiff  was 
struck  and  injured  by  one  of  defendant's  cars,  while  exer- 
cising ordinary  care  for  his  own  safety,  you  will  find  for 
the  plaintiff.  Unless  you  so  believe,  you  will  find  for  the 
defendant. 

"(2)  Although  you  may  believe  from  the  evidence  that 
defendant's  agents  in  charge  of  said  train  failed  to  give 
reasonable  warning  of  its  approach  and  failed  to  keep  a 
reasonable  lookout,  yet  if  you  believe  from  the  evidence 
that  the  plaintiff  himself  failed  to  exercise  ordinary  care 
to  discover  the  approach  of  the  train  and  to  keep  out  of 
its  way,  and  that  such  failure  on  his  part,  if  any,  so  con- 
tributed to  his  injury  that  but  for  said  failure  his  injury, 
if  any,  would  not  have  been  received,  you  will  find  for  de- 
fendant. 

**  (3)  If  you  believe  from  the  evidence  that  a  reasonable 
lookout  was  kept,  and  that  reasonable  warning  of  the  ap- 
proach of  the  train  was  given,  and  that  plaintiff  went  upon 
the  track  so  close  to  the  approaching  train  that  the  injury 
to  him  could  not  be  avoided  by  the  exercise  of  ordinary 
care  upon  the  part  of  those  in  charge  of  the  train  after  they 
perceived  his  danger,  or  could  have  perceived  it  by  the 
exercise  of  ordinary  care,  you  will  find  for  the  defendant. 

"(4)  Reasonable  or  ordinary  care  is  such  care  as  an 
ordinarily  prudent  person  will  usually  exercise  under  cir- 
cumstances the  same  or  similar  to  those  proven  in  this 
case. 

*'(5)  If  you  find  for  the  plaintiff,  you  will  award  him 
such  sum  in  damages  as  you  may  believe  from  the  evidence 
will  fairly  comijensate  him  for  his  mental  or  physical  suf- 


Sec.  3]  Instructing  the  Juey  439 

f ering,  if  any ;  for  his  loss  of  time,  if  any ;  and  for  the  per- 
manent imi^airment,  if  any,  of  his  power  to  earn  money, 
which  you  may  believe  from  the  evidence  was  the  proxi- 
mate result  of  his  injury,  if  any ;  not  exceeding  in  all,  how- 
ever, the  sum  of  $2,000." 

No  other  instructions  will  be  given. 

The  judgment  is  reversed,  and  cause  remanded  for  a 
new  trial  consistent  with  this  opinion. 

1  In  Kansas  City,  Mexico  and  Orient  Ry.  Co.  v.  Loosley  (1907)  76  Kan.  103, 
90  Pac.  990,  the  court  said:  "The  defendant  claims  the  court  erred  in  re- 
fusing its  request.  The  plaintiff  argues  that  the  instruction  tendered  wa^ 
faulty  and  hence  was  properly  refused.  For  present  purposes  it  may  be 
conceded  that  this  is  true.  it  may  further  be  conceded  that  without  a  re- 
quest the  court  was  not  obliged  to  instruct  upon  the  matter  involved.  But  if 
a  defective  request  actually  brings  to  the  court's  notice  an  important  prin- 
ciple of  law  which  ought  to  be  stated  to  enable  the  jury  to  render  an  intelli- 
gent verdict,  it  may  be  prejudicial  error  to  disregard  it;  and  if  an  attempt 
be  made  by  an  instruction  to  submit  the  subject  defectively  covered  by  the 
request  to  the  consideration  of  the  jury,  it  should  be  sufficiently  explicit  and 
comprehensive  to  cover  fairly  the  field  of  the  request." 


STATE  V.  LEGG. 

Supreme  Court  of  Appeals  of  West  Virginia.    1906, 

59  West  Virginia,  315. 

Sanders,  Judge: 

This  writ  of  error  is  to  a  judgment  of  the  circuit  court 
of  Clay  county,  convicting  the  defendant,  Sarah  Ann  Legg, 
of  the  murder  of  her  husband,  Jay  Legg,  and  sentencing 
her  to  be  hanged. 

As  to  instructions  Nos.  2,  3,  4  and  5.  By  these  instruc- 
tions it  is  undertaken  to  define  reasonable  doubt.  We  see 
no  objection  to  these  instructions  as  such.  They  seem  to 
define  reasonable  doubt  correctly,  and  no  objection  to  their 
correctness  is  pointed  out.  But  it  is  urged  that  the  court 
erred  in  gi\'ing  them,  because  they  are  upon  the  sams  point, 
and  for  the  same  purpose,  and  that  a  continued  re])etition 
of  instructions  upon  a  single  point  is  calculated  to  preju- 
dice tin  defendant.  It  was  entirely  unnecessary  to  repeat 
these  instructions.     It  is  manifestly  improper  to  do  so. 


440  Teial  Pkactice  [Chap.  11 

The  purpose  of  instructing  a  jury  is  to  aid  them  in  arriving 
at  a  proper  verdict,  and  not  to  confuse  them,  and  in  order 
to  be  of  aid,  instructions  should  not  be  repeated,  but  when 
once  given,  presenting  a  particular  theory  of  a  case,  no 
other  instruction  presenting  the  same  theory  should  be 
given,  because  to  do  so  is  to  destroy  the  very  purpose  for 
which  instructions  are  given,  and  to  mystify  and  confuse 
the  jury.  It  is  true  these  instructions  present  the  defini- 
tion in  different  language,  but  there  is  no  necessity  for  it 
to  be  defined  more  than  once.  Four  long  instructions  upon 
reasonable  doubt,  which  has  never  yet  been  defined  or  made 
clearer  than  the  words  themselves  import,  can  certainly  be 
of  no  service  to  a  jury.  The  practice  of  repeating  instruc- 
tions should  be  condemned.  It  is  wrong  to  do  this,  and 
thereby  prominently  impress  a  single  feature  of  a  case 
upon  a  juror.  Either  of  these  instructions  would  have  been 
sufficient,  but  as  to  whether  or  not  the  repetition  of  them  is 
reversible  error,  we  will  not  determine,  because,  on  other 
grounds  the  judgment  will  have  to  be  reversed,  and  upon 
a  second  trial,  the  necessity  for  this  criticism  can  be 
obviated. 

The  judgment  of  the  circuit  court  is  reversed,  and  a  new 
trial  awarded  the  defendant. 

Reversed.^ 

1  Bepetition  not  error  vnlr.^s  jury  misled.  Tn  Gran  v.  Houston  (1895) 
45  Nebr.  813,  64  N.  W.  245,  the  court  said:  "While  there  may  have  been 
repetitions  which  were  not  necessities,  or  which  in  the  opinion  of  counsel 
or  this  court  were  unnecessary,  yet  there  were  none  which  tended,  nor  did 
they  as  a  whole  tend,  to  mislead  the  jury,  nor  can  we  believe  the  jury  was 
misled  by  them,  hence  there  was  no  prejudice  to  the  rights  of  plaintiff  in 
error,  and  the  action  of  the  court,  the  grounds  for  this  complaint,  furnishes 
no  tenable  reason  for  a  reversal  of  the  case." 


Sec.  3]  Instructing  the  Jury  441 

CITY  OF  CHICAGO  V.  MOORE. 

Supreme  Court  of  Illinois.     1891. 
139  Illinois,  201. 

Mr.  Justice  Shope  delivered  the  opinion  of  the  court: 

This  was  a  suit  for  personal  injury,  alleged  to  have  been 
received  by  defendant  because  of  a  defective  sidewalk  over 
and  upon  which  she  was  passing  with  due  care  and  caution, 
and  which  appellant  was  required  to  keep  in  safe  repair 
and  condition.  The  trial  resulted  in  a  verdict  for  plaintiff, 
which,  on  appeal  to  the  Appellate  Court,  was  afiRrmed. 

Counsel  for  appellant  have,  seemingly,  filed  in  this  court 
their  brief  filed  in  the  Appellate  Court,  containing  an  elab- 
orate discussion  of  the  facts,  which  must  in  this  court  be 
deemed  as  being  settled  adversely  to  their  contention  by 
the  judgment  of  the  Appellate  Court. 

The  first  point  made  which  we  will  consider  is  that,  the 
court  erred  in  refusing  all  instructions  asked,  and  giving 
one  prepared  by  the  court  in  lieu  thereof.  It  is  insisted 
with  great  earnestness,  that  under  the  practice  in  this  State, 
and  under  the  statute,  the  respective  parties  have  the  right 
to  have  instructions  given  or  refused  by  the  court  as  asked 
by  them,  and  that  it  is  error  for  the  court  to  refuse  an  in- 
struction containing  a  correct  proposition  of  law  applicable 
to  the  facts,  although  an  instruction  embodying  every  ma- 
terial phase  thereof  be  given  in  an  instruction  or  instruc- 
tions prepared  by  the  court.  It  is  said  ''that  there  is  no 
place  under  our  law  for  instructions  by  the  court  sua 
sponte,  except  when  counsel  have  failed  to  present  proper 
instructions,  and  the  justice  of  the  case  demands  that  the 
judge  supply  the  omission."  The  contrary  to  this  conten- 
tion has  been  so  repeatedly  held,  and  the  practice  of  giving 
a  charge  prepared  by  the  court,  and  containing  all  of  the 
material  points  covered  by  the  instructions  asked,  has  been 
so  often  commended  by  this  court,  that  the  question  ought 
to  be  regarded  as  settled  in  this  state.  Hill  ef  al  v.  Parsons 
et  al,  110  111.  Ill ;  Haucliett  v.  Kimhark  et  al,  118  id.  132 ; 
Birmingham  Fire  Ins.  Co.  v.  Pulrer,  126  id.  329. 

In  the  latter  case,  in  speaking  of  this  practice,  we  said : 


442  Trial  Practice  [Chap.  11 

"The  propriety  of  the  practice  thus  adopted  is  challenged, 
the  proposition  contended  for  seeming  to  be,  that  in  this 
State  the  functions  of  the  court  in  the  matter  of  instruct- 
ing a  jury  are  practically  limited  to  giving  or  refusing  the 
written  instructions  asked  by  counsel.  Such,  clearly,  is  not 
the  case.  True,  he  may,  if  he  sees  fit,  limit  himself  to  giv- 
ing the  instructions  submitted  by  the  counsel  which  proper- 
ly state  the  law,  and  then,  even  though  the  law  be  inade- 
quately given  to  the  jury,  no  error  can  ordinarily  be  predi- 
cated upon  such  action,  because  if  counsel  had  deemed 
other  instructions  necessary,  they  might  and  should  have 
asked  them.  But  where  the  judge  sees  proper  to  do  so,  it 
is  competent  for  him  to  prepare  his  own  charge  to  the  jury, 
but  if  he  does  so,  he  should  embody  in  it,  either  literally  or 
in  substance,  all  proper  instructions  asked  by  counsel." 
See,  also,  Chicago  and  loiva  Railroad  Co.  v.  Lane,  30  111. 
App.  443. 

The  statute  prescribes  that  the  court  charging  the  jury 
shall  instruct  as  to  the  law,  only,  (Practice  act,  sec.  51,) 
and  that  no  judge  shall  instruct  a  petit  jury  unless  the  in- 
structions be  reduced  to  writing.     (Practice  act,  sec.  52.) 
Section   54   provides,   that   when   instructions   are    asked 
"which  the  judge  can  not  give,"  he  shall  mark  the  same 
refused,  "and  such  as  he  approves  he  shall  write  on  the 
margin  thereof,  given,"  and  he  is  then  prohibited  from 
qualifying,  modifying  or  explaining  the   same,   otherwise 
than  in  writing.    The  court  must  see  that  the  instructions 
given  to  the  jury,  not  only  separately,  but  as  a  whole,  con- 
form to  the  rules  of  law  and  practice  in  our  courts.    It  by 
no  means  follows,  because  an  instruction  contains  a  correct 
proposition  of  law,  that  it  must  meet  the  approval  of  the 
judge,  and  must  therefore  be  given.     Each  party  to  the 
litigation  has  a  right  to  demand  that  the  law  applicable  to 
his  case  shall  be  given  with  accuracy  and  clearness  to  the 
jury.    But  this  is  all  that  he  has  a  right  to  demand,  and  it 
was  early  held,  under  this  statute,  that  the  court  might  re- 
fuse erroneous  instructions,  modify  them,  or  give  instruc- 
tions of  its  own,  as  it  might  deem  expedient,  {Vanlanding- 
ham  V.  Huston,  4  Gilm.  125,)  and  such  has  been  the  uniform 
holding  ever  since.    And  it  has  been  so  repeatedly  held  that 
it  is  not  error  to  refuse  instructions,  however  applicable 


Sec.  3]  Insteucting  the  Juky  443 

and  pertinent,  wlien  the  material  parts  are  given  in  other 
instructions,  that  the  citation  of  authority  seems  unneces- 
sary. Here  appellant  asked  seventeen  instructions.  A  care- 
ful consideration  of  them  will  show,  as  it  is  conceded,  that 
the  instruction  prepared  and  given  by  the  court  contained 
every  important  or  material  proposition  embodied  therein, 
except  the  fourth  instruction  asked  and  refused,  in  respect 
of  which,  as  we  shall  see  hereafter,  appellant  has  no  cause 
of  complaint.  If  the  jury  were  accurately  instructed  in  re- 
spect of  each  proposition  contained  in  the  instructions 
asked,  proper  to  be  given,  the  party  can  not  be  heard  to 
complain. 

It  is,  however,  said,  that  the  instructions  prepared  by 
the  counsel  presented  the  questions  sharply  and  incisively, 
while  those  of  the  court  are  more  moderate  in  expression 
and  less  forceful.  This  may  be  conceded  without  affecting 
the  result.  As  said  by  the  Appellate  Court:  ''The  instruc- 
tions handed  up  come  to  the  judge  from  partisan  hands, 
and  have  been  drawn  as  carefully  as  the  skill  of  a  lawyer 
can  accomplish  it  to  present  a  partisan  view,  or  to  convey 
a  hint,  suggestion  or  intimation  of  advantage  to  his  client. 
The  same  legal  rule  may  be  stated  in  a  differently  arranged 
combination  of  words  by  the  judge,  and  be,  as  it  is  very 
likely  to  be,  coldly  impartial,  and  entirely  colorless  in  its 
statements  of  facts  on  which  it  is  based."  The  utmost 
care  should  be  taken  by  the  judge  to  include  within  the 
charge  every  i^roposition  of  law  applicable  to  the  facts  of 
the  case  embraced  within  the  instructions  asked,  and  such 
others  as  he  may  deem  necessary  to  the  attainment  of  jus- 
tice. His  language  should  be  clear  and  impartial,  and  con- 
vey to  the  jury  the  law  of  the  case  in  terms  they  will  com- 
])rehend.  When  this  is  done  the  practice  is  to  be  com- 
mended, rather  than  the  other,  which  too  freqently  leaves 
the  mind  of  the  juror  in  uncertainty  as  to  what  is  meant  by 
the  disjointed,  and,  to  his  mind,  disconnected  and  conflict- 
ing, propositions  of  law,  and  which  embarrass  and  mislead 
him  perhaps  quite  as  often  as  they  lead  him  to  correct  con- 

olusions. 

********** 

Finding  no  error  in  this  record  for  which  the  judgment 
should  be  reversed,  it  is  affirmed. 

Judgment  affirmed.^ 


444  Tbial  Pkactice  [Cliap.  11 

1  A  number  of  courts  have  declaretl  that  the  practice  of  charging  the  jury 
in  the  language  of  the  court  instead  of  in  the  language  of  counsel,  is  decidedly 
preferable,  even  where  the  requested  charges  are  unexceptionable  in  law  when 
separately  examined,  for  the  reason  that  thereby  the  charge  can  be  made  more 
orderly  and  harmonious  and  is  freed  from  the  partisan  spirit  and  want  of 
proper  perspective  which  instructions  usually  show  when  prepared  by  coun- 
sel. Eosenstein  v.  Fair  Haven  v.  Westville  E.  E.  Co.  (1905)  78  Conn.  29, 
60  Atl.  1061;  Kinney  v.  Ferguson  (1894)  101  Mich.  178,  59  N.  W.  401. 

On  the  other  hand,  some  courts  hold  that  the  court  is  bound  to  give  a  cor- 
rect instruction  in  the  language  of  the  request.  Thus,  in  Morrison  v.  Fair- 
mont &  Clarksburg  Traction  Co.  (1906)  60  W.  Va.  441,  55  S.  E.  669,  the  court 
said :  "A  party  is  entitled  to  an  instruction  in  his  own  language,  if  it  cor- 
rectly propounds  the  law  applicable  to  the  case,  and  is  not  misleading  and 
there  are  facts  in  evidence  to  support  it.  State  v.  Evans,  30  W.  Va.  417; 
Jordan  v.  Benwood,  42  W.  Va.  312.  Where  such  instructions  are  asked 
a  court  should,  without  hesitation,  give  them.  It  is  a  right  a  party  has 
to  couch  his  instructions  in  his  own  language,  and  when  he  has  done  so,  if 
they  fulfill  the  legal  requirements,  they  should  be  given.  But  while  this  is 
true,  yet  what  should  be  the  effect  after  verdict,  where  such  instruction  is 
refused,  but  modified  and  given?  Can  we  say  that  it  is  reversible  error  for 
the  court  to  make  a  slight  or  immaterial  change  in  an  instruction?  Must  in- 
structions be  given  literally  as  offered,  and  if  this  is  not  done,  must  we  over- 
throw the  verdict?  We  cannot  so  hold.  While  such  an  instruction  should  be 
given,  yet  a  verdict  will  not  be  set  aside  where  this  is  not  done,  when  it 
is  modified  and  given,  if  we  can  clearly  see  that  the  instruction  as  modified 
is  the  same  in  legal  effect  as  the  one  offered." 

And  in  some  states  it  is  provided  by  statute  that  the  court  shall  instruct 
in  the  language  of  the  request  when  such  request  is  correct  in  law.  Ala- 
bama, Code,  1903,  <$  5364;  North  Dakota,  Eev.  Codes,  1905,  $  7021;  South 
Dakota,  Code  Civ.  Pro.,  1903,  $  256. 


KLOFSKI  V.  RAILROAD  SUPPLY  COMPANY. 

Supreme  Court  of  Illinois.    1908. 
235  Illinois,  146. 
Me.  Justice  Vickees  delivered  the  opinion  of  the  court: 

The  second  count  in  the  declaration  alleges  that  appellant 
carelessly  and  negligently  employed  an  incompetent  and 
reckless  servant  and  permitted  such  incompetent  servant 
to  operate  and  manage  ladles  filled  with  molten  metal ;  that 
such  incompetency  of  the  said  servant  was,  or  ought  to 
have  heen,  known  to  appellant  and  was  unknown  to  appel- 
lee, hy  means  whereof  the  appellee  was  injured,  as  afore- 
said, through  the  incompetency,  recklessness  and  careless- 
ness of  said  servant  of  appellant.  The  gist  of  the  second 
count   of  the   declaration   is,   that   appellant,  with  notice, 


Sec.  3]  Instructing  the  Juey  445 

negligGntly  employed  an  incompetent  servant  to  handle  a 
ladle  full  of  molten  metal,  by  means  whereof  the  appellant, 
by  its  said  servant,  carelessly  caused  the  said  metal  to  spill 

upon  the  ground  and  explode  against  the  appellee. 

********** 

It  is  next  urged  by  appellant  that  the  court  erred  in  giv- 
ing instruction  No.  4.    That  instruction  is  as  follows : 

*'It  was  the  duty  of  the  defendant  to  use  reasonable  care 
to  learn  and  know  whether  its  servants  were  competent  and 
fit  for  their  work,  so  that  it  would  be  reasonably  safe  for 
the  defendant's  other  servants  to  work  with  them  without 
being  exposed  to  unnecessary  danger  to  life  or  limb  by 
reasons  of  incompetency,  if  any;  and  if  defendant's  servant 
known  as  'Scotty'  was  incompetent  for  his  work,  and  if  by 
reason  thereof  other  servants  of  defendant  were  exposed 
to  unnecessary  dangf^r  to  life  and  limb,  and  if  defendant  by 
reasonable  care  would  have  known  of  such  incompetency 
and  danger,  if  any,  before  the  alleged  injury  to  plaintiff,  in 
time  by  reasonable  care  to  prevent  such  danger,  then  it  was 
defendant's  duty  to  use  reasonable  care  not  to  expose  the 
plaintiff  to  the  danger,  if  any,  of  working  with  such  in- 
competent servant,  if  any." 

Appellant  concedes  that  this  instruction  states  a  correct 
proposition  of  law  as  far  as  it  goes,  but  contends  that  under 
the  evidence  in  this  case  the  instruction  should  have  gone 
further  and  explained  to  the  jury  that  if  appellee  had  knowl- 
edge, or  equal  means  of  knowledge,  with  appellant  of  the  in- 
competency of  the  servant  "Scotty"  and  made  no  objec- 
tion to  working  with  him,  appellee  would  assume  the  risk 
of  injury  that  might  result  from  such  incompetency.  This 
criticism  cannot  be  sustained.  The  instruction  under  con- 
sideration does  not  purport  to  state  all  the  facts  upon 
which  a  right  of  recovery  depends.  It  does  not  conclude 
with  a  direction  to  find  a  verdict  for  appellee,  and  does  not, 
therefore,  fall  within  a  class  of  instructions  often  con- 
demned by  this  court  which  conclude  with  a  direction  to 
find  a  verdict  for  a  particular  party  without  stating  all  the 
essential  facts  to  support  such  conclusion.  It  is  unneces- 
sary, and  aften  impracticable,  to  state  the  whole  law  of  a 
case  in  one  instruction.  Efforts  to  do  so  are  more  likely  to 
confuse  than  enlighten  the  jury.     Besides,  the  liability  to 


446  Trial  Practice  [Chap.  11 

commit  error  is  minimized  by  stating  the  law  applicable  to 
a  particular  question  or  particular  parts  of  the  case  in 
separate  instructions.  This  court  has  often  had  occasion 
to  announce  the  familiar  rule  that  instructions  are  to  be 
considered  as  a  series,  and,  when  so  considered,  if,  as  a 
whole,  they  state  the  law  correctly  that  is  sufficient.  The 
jury  were  informed  by  other  instructions  in  the  series  of 
the  effect  the  facts  omitted  from  this  one  would  have  upon 
Mie  relative  rights  of  the  parties.  Instruction  No.  36  given 
on  behalf  uf  appellant  advises  the  jury  that  appellee  could 
not  recover  under  the  second  count  of  his  declaration  unless 
he  proved  that  he  did  not  know,  and  by  the  exercise  of 
reasonable  diligence  would  not  have  known,  that  the  ser- 
vant "Scotty"  was  incompetent,  careless  and  reckless.  Ap- 
pellant had  the  full  benefit  of  the  doctrine  of  the  assump- 
tion of  risk,  so  far  as  it  applied,  resulting  from  the  in- 
competency and  carelessness  of  the  fellow  servant  of  the 
appellee  by  instructions  18,  19,  20,  21,  22,  30,  33,  35,  36  and 
38  given  at  its  instance  by  the  court. 

There  being  no  reversible  error  in  this  record  the  judg- 
ment of  the  Appellate  Court  for  the  First  District  is  af- 
firmed. 

Judgment  affirmed. 


McDIVITT  V.  DES  MOINES  CITY  RAILWAY  COM- 
PANY. 

Supreme  Court  of  loiva.     1909. 

141  Iowa,  689, 

Evans,  J. — *  *  * 

The  appellant  complains  further  that  the  instructions  of 
the  court  were  contradictory,  and  that,  although  the  court 
held  the  deceased  to  have  been  guilty  of  contributory  negli- 
gence, it  nevertheless  laid  upon  the  plaintilY  the  burden  of 
proving  freedom  from  contributory  negligence  before  she 


Sec.  3]  Instructing  the  Juey  447 

could  recover  even  upon  the  theory  of  the  ''last  clear 
chance. ' ' 

After  a  statement  of  the  issues,  the  court  presented  its 
instructions  in  paragraphs  numbered  from  1  to  19,  inclu- 
sive.     The  first  six  are  as  follows: 

(1)  The  burden  of  proof  is  ujDon  the  plaintiff  to  estab- 
lish by  preponderance  of  the  evidence  each  of  the  follow- 
ing propositions:  First,  that  the  deceased,  Edith  Mc- 
Divitt  Lawson,  was  struck  and  injured  by  the  defendant's 
car  about  the  time,  at  the  place,  and  substantially  in  the 
manner  alleged  in  plaintiff's  petition;  second,  that  said 
decedent  was  not  g^i^^ty  of  negligence  causing  or  contrib- 
uting to  her  said  injury;  third,  that  the  defendant  was 
guilty  of  negligence  substantially  as  alleged  by  plaintiff 
and  hereafter  in  these  instructions  more  fully  specified; 
fourth,  that  said  injuries  so  received  by  decedent  were  the 
direct  and  approximate  result  of  the  negligence  of  the  de- 
fendant; fifth,  that  the  estate  of  decedent  has  been  dam- 
aged in  some  amount  thereby.  If  you  find  affirmatively 
as  to  each  and  all  of  the  above  propositions,  then  your 
verdict  will  be  for  the  plaintiff.  If  you  fail  to  find  affir- 
matively as  to  any  one  of  the  above    propositions,    your 

verdict  will  be  for  the  defendant. 

********** 

(4)  The  undisputed  evidence  in  this  case  shows  that 
the  deceased  approached  the  railway  track  of  defendant, 
and,  after  having  so  approached  the  railway  track  of  de- 
fendant, waited  for  the  west-bound  car  to  pass  her,  and 
that,  after  such  car  had  passed,  decedent  immediately  pro- 
ceeded across  the  north  track,  and  the  mtervenmg  space 
of  almost  five  feet  between  the  north  and  south  tracks,  and 
stopped  in  front  of  an  east-bound  car  on  the  south  track, 
there  passing,  and  was  struck  by  said  car  without  taking 
any  precautions  to  avoid  the  accident.  You  are  instruc- 
ted as  a  matter  of  law  that  this  action  of  decedent  would 
constitute  negligence,  and  plaintiff  cannot  recover  unless 
you  find  as  hereinafter  instructed.  The  only  question 
therefore  which  you  have  submitted  to  you  for  considera- 
tion is  whether  or  not  the  defendant's  employees  in  charge 
of  the  east-bound  car,  which  came  in  contact  with  the  de- 
ceased, were  guilty  of  the  negligence  charged  in  failing  to 
avoid  the  injury  which  resulted  in  the  death  of  decedent 


448  Trial  Practice  [Chap.  11 

after  the  deceased  stepped  from  behind  the  west-bound 
ear  and  onto  the  south  track  of  defendant,  and  she  was 
seen  by  the  motorman  in  a  position  of  danger  *  *  * 

(6)  You  have  been  heretofore  instructed,  gentlemen, 
that  the  decedent  was  negligent  in  going  upon  the  track  in 
front  of  the  east-bound  car,  which  struck  her;  but  you  are 
further  instructed  that,  while  the  law  holds  that  plaintiff 
cannot  recover  on  account  of  the  contributory  negligence 
of  the  decedent  in  stepping  in  front  of  the  east-bound  car 
in  the  manner  in  which  she  did,  yet  if,  after  the  motorman 
saw  her  in  a  place  of  danger  or  about  to  step  upon  the 
track  in  front  of  the  approaching  car,  he  negligently  fail- 
ed to  stop  said  car  within  a  reasonable  time  or  distance 
under  the  circumstances  shown  by  the  testimony,  and 
such  failure  was  the  direct  and  proximate  cause  of  the  in- 
jury which  resulted  in  the  death  of  decedent,  then  your 
verdict  will  be  for  the  plaintiff. 

From  an  examination  of  instruction  1,  it  will  be  ob- 
served that  the  jury  was  instructed,  expressly,  that,  if  it 
failed  to  find  that  the  decedent  was  not  guilty  of  contrib- 
utory negligence,  the  verdict  must  be  for  the  defendant. 
Instructions  4  and  6  expressly  stated  to  the  jury  that  the 
decedent  was  guilty  of  contributory  negligence.  This  pre- 
sents the  alleged  contradiction  of  which  appellant  com- 
plains. It  is  contended  by  appellee  that  instructions  4 
and  6  expressly  state  to  the  jury  that  the  plaintiff  may  re- 
cover notwithstanding  contributory  negligence,  and  this 
contention  is  correct;  but  this  does  not  eliminate  the  con- 
tradiction in  the  instructions.  Appellee  contends  that  the 
instructions  must  be  considered  as  a  whole,  and  this  is 
true.  It  is  argiied  also,  that  the  error  in  the  first  instruc- 
tion is  cured  by  the  statement  in  the  fourth  and  sixth;  but 
it  is  cured  only  in  the  form  of  a  contradiction.  Our  pre- 
vious cases  cited  by  appellee  are  not  in  point.  It  has  been 
held  that  where  an  instruction  is  ambiguous,  or  where 
standing  alone,  it  is  erroneous  because  of  some  omission, 
it  may  be  cured  by  other  instructions  that  are  clear  upon 
the  omitted  or  ambiguous  point;  but  where  an  instruction 
is  free  from  ambiguity,  and  is  aflirmatively  erroneous,  the 
error  is  not  cured  by  a  contradiction  contained  in  another 
instruction.  There  is  no  way  in  such  case  to  determine 
which  instruction  the  jury  may  follow.     The  question  pre- 


Sec.  4]  Instructing  the  Jury  449 

sented  in  this  case  is  almost  parallel  with  Christy  v.  City 
Raihvay  Company,  126  Iowa,  428,  and  the  cases  therein 
cited.  The  error  in  this  case  was  somewhat  emphasized 
by  the  sixteenth  instruction,  which  contains  the  following: 
"Contributory  negligence  is  such  negligence  as  contrib- 
utes to  an  injury" — a  definition  which  was  quite  unneces- 
sary in  view  of  the  withdrawal  of  the  question  from  the 
consideration  of  the  jury.  The  natural  effect  of  it  would 
be  to  impress  the  jury  that  the  question  was  still  in  the 
case,  and  to  emphasize  the  error  contained  in  instruction 


The  judgment  below  is  reversed,  and  cause  remanded 
for  a  new  trial. — Reversed. 


Section  4.    Requests  for  Instructions. 

CENTRAL  RAILROAD  V.  HARRIS. 

Supreme  Court   of  Georgia.    1886. 

76  Georgia,  501. 

Lucinda  Harris  brought  suit  against  the  Central  Rail- 
road to  recover  damages  for  the  killing  of  her  husband. 
The  testimony  for  the  plaintiff  tended  to  show  that  the 
husband  was  in  the  depot  in  the  city  of  Atlanta ;  that  he 
walked  alongside  the  train  to  go  beyond  the  engine,  which 
projected  from  the  depot  into  a  street-crossing  at  its  end; 
that  he  undertook  to  cross  the  track  at  the  street-crossing, 
when  the  train  started  rapidly  without  giving  any  signal 

and  ran  over  him. 

********** 

The  jury  returned  a  verdict  for  the  plaintiff  for  one 
thousand  dollars.     The  defendant  moved  for  a  new  trial 

upon  the  following  grounds: 

********** 

(2)  Because  the  court  failed  entirely  to  put  before  the 
jury  the  main  defense  relied  upon  by  the  defendant,  and 
to  sustain  which  abundant  evidence  had  been  introduced, 

T.  p.— 29 


450  Trial  Practice  [Chap.  11 

to-wit,  that  defendant  had  boarded  the  passenger  train  in 
the  depot  without  having  purchased  a  ticket,  and  without 
having  any  intention  of  leaving  the  city  thereon,  but  simp- 
ly to  say  good-bye  to  a  crowd  of  colored  servants  on  their 
way  to  Florida,  and  that  he  had  attempted  to  jump  from 
said  train  when  in  motion,  and  from  a  platform  having  no 
steps  attached  thereto  by  which  to  descend  to  the  ground, 
and  having  a  railing  extending  around  the  entire  plat- 
form to  prevent  persons  from  getting  on  and  off  the  car 
to  which  it  was  attached,  at  that  end.  The  charge  of  the 
court  failed  to  call  the  attention  of  the  jury  in  any  way 
to  these  facts,  but  singled  out  the  one  element  of  negli- 
gence arising  from  the  failure,  if  such  failure  existed,  to 
toll  the  bell  on  crossing  Pryor  street. 

Jackson,  Chief  Justice. 

The  very  able  and  distinguished  counsel  for  defendant 
in  error  saw  the  force  of  this  exception  to  the  charge,  and 
endeavored  to  meet  it  by  the  reply  that  the  counsel  for 
the  plaintiff  in  error  could  not  use  the  exception,  because 
he  did  not  call  the  attention  of  the  court  to  the  omission  of 
which  he  now  complains,  and  cited  decisions  of  this  court 
bearing  upon  the  necessity  of  his  doing  so  before  he  could 
take  advantage  of  the  omission. 

"We  think,  however,  that  the  cases  cited,  and  the  princi- 
ples on  which  they  rest,  do  not  apply  to  the  clear  omission 
to  notice  in  the  charge  a  plain  defence  of  the  company 
arising  out  of  his  evidence  so  as  not  to  escape  the  obser- 
vation of  the  judge,  but  to  omissions  to  expand  the  charge, 
so  as  to  make  more  clear  the  point    on    which    he    has 
charged  substantially,  but  not  as  fully  as  would  have  been 
done  had  attention  been  called  to  it.     The  courts  will  not 
allow  a  party  to  lie  in  wait  for  the  judge  when  he  charges 
substantially  the  law  covering  the  case,  and  then  object  to 
the  insufficiency  of  a  portion  of  it;  but  in  every  case,  the 
law  of  it  must  be  given  in  substance  to  the  jury,  because  if 
it  is  not  given,  the  general  verdict  they  give  is  not  upon 
the  law,  the  law  of  the  case,  but  on  facts  without  instruc- 
tions on  the  law  of  the  case.     The  ship  is  at  sea  without 
chart  or  pilot,  and  can  never  reach  the  port  to  which  it  is 
bound  without  their  guidance.     The  verdict  can  never  be 
a  legal  verdict  unless  instructions  on  the  law  of  the  case 


Sec.  4]  Instructing  the  Jury  451 

be  given  by  him  who  presides  for  that  pur^Dose.  The  omis- 
sion to  cover  the  case  substantially  must  always  set  it 
aside. 

An  so  this  court  has  often  ruled.  In  the  case  of  Har- 
din, Executor  vs.  Almand,  64th  Ga.  582,  the  8th  head-note 
lays  down  the  rule  thus:  "Where  the  case  is  fully  cov- 
ered by  the  general  charge,  the  failure  to  instruct  the 
jury  on  a  particular  branch  of  it  is  not  error  in  the  ab- 
sence of  a  request."  The  case  at  bar  is  not  fully  covered, 
in  that  it  ignores  one  defence,  and  makes  an  act  of  negli- 
gence in  the  company  affect  that  defence,  if  meant  to  be 
alluded  to  at  all,  which  act  could  not  have  possibly  affec- 
ted it. 

So  from  an  early  date  this  court  has  uniformly  held  that 
the  law  of  the  case  must  be  given  to  the  jury  to  the  extent 
of  covering  the  substantial  issues  made  by  the  evidence, 
whether  requested  or  not,  or  attention  be  called  to  it  or 

not;  otherwise  the  verdict  will  be  set  aside. 

********** 

In  all  these  cases,  it  is  believed,  from  an  examination  of 
each,  the  principle  is  clearly  deducible  that  without  any 
request  of  counsel  or  reminder  of  the  court  by  counsel,  the 
instructions  of  the  court  must  substantially  embrace  the 
rule  of  law  on  the  issues  between  the  parties  which  the 
evidence  makes.  If  that  be  done  substantially,  then  there 
is  a  line  of  decisions  cited  by  counsel  for  the  defendant 
in  error,  to  the  effect  that  if  the  charge  be  not  full  enough 
or  clear  enough  or  omits  something  that  would  put  one 
side  or  the  other  more  fairly  before  the  jury  than  the 
charge  given  does,  then  the  notice  of  the  court  must  be 
called  thereto,  or  the  party  complaining  will  not  be  heard 
here.  If  there  be  any  exception  to  this  general  rule  in 
this  court  from  11th  Ga.  down  to  69th,  it  is  very  scarce, 
and  will  be  found  approximating  closely  to  the  rule  laid 

down,  if  not  clearly  within  it. 

********** 

The  judgment  is  reversed  solely  because  the  court  in 
the  charge  ignored  the  defence  set  up  by  the  defendant  be- 
low, that  plaintiff's  husband's  own  negligence — his  own 
rash  act — in  jumping  from  the  cars  killed  him,  without 
any  negligence  at  all  of  the  defendant  which  contributed 


452  Trial  Peactice  [Chap.  11 

to  that  act  of  his, — the  only  negligence  proved  being  the 
neglect  to  ring  the  bell,  which  did  not  affect  in  the  least 
the  disastrous  result  of  the  rashness  of  the  deceased. 

Judgment  reversed} 

\  Accord:  Owen  v.  Owen  (1867)  22  Iowa,  270;  Capital  City  Brick  & 
Pipe  Co.  V.  Des  Moines  (1907)  136  Iowa,  243,  113  N.  W.  835;  York  Park 
Bldg.  Ass'n  V.  Barnes   (1894)   39  Neb.  834,  58  N.  W.  440. 


MORGAN  V.  MULHALL. 

Supreme  Court  of  Missouri.     1908, 
214  Missouri,  451. 

Lamm,  J. — Suing  Mulhall,  Ernest  Morgan  hj  his  next 
friend  asked  $20,000  damages,  grounding  his  right  of  ac- 
tion on  a  negligent  shooting  and  wounding.  At  a  trial 
with  the  aid  of  a  jury,  he  got  a  verdict  of  $5,000.  From 
a  judgment  entered,  defendant  appeals. 

The  petition  follows: 

''The  plaintiff'  for  his  cause  of  action  showeth  to  the 
court  that  on  the  24th  day  of  May,  1905,  upon  the  petition 
of  said  Ernest  Morgan  the  said  circuit  court  did  appoint 
Joseph  Morgan  as  his  next  friend  to  commence  and  prose- 
cute this  suit,  and  said  Joseph  Morgan  has  consented  in 
writing  to  act  as  such  next  best  friend  for  said  purpose. 

"And  the  plaintiff  further  showeth  to  the  court  that  on 
the  18th  day  of  June,  1904,  in  said  city  of  St.  Louis  and 
on  the  grounds  of  the  Louisiana  Purchase  Exposition 
Company,  the  defendant  by  shooting  into  a  crowd  of  peo- 
ple negligently  shot  the  plaintiff,  Ernest  Morgan,  with  a 
])istol  *  *  * 

Defendant  stood  mute  and  neither  prayed  nor  got  any 
instructions  whatever.  Plaintiff  asked  none  on  the  trial 
issue  of  negligence  nor  on  issues  relating  to  the  defence. 
Pie  asked  and  got  two — one  on  the  measure  of  damages,  the 
other  a  rule  of  law  relating  to  the  credibility  of  the  wit- 
nesses and  the  weight  of  their  testimony.  In  this  state 
of  the  record,  defendant  does  not  contend  the  instructions 


Sec.  4]  Instbucting  the  Jury  453 

given  were  bad  law  in  and  of  themselves,  but  his  counsel  in- 
sist it  was  error  to  not  give  instructions  bearing  upon  the 
issues   and  announcing  rules   of  law   by  which  the  jury 

could  be  guided  to  a  just  verdict  on  them. 

********** 

(b)  An  excellent  law  writer  states  the  general  doctrine 
in  civil  cases  to  be:  '*It  is  then,  a  general  rule  of  pro- 
cedure, subject,  in  this  country,  to  a  few  statutory  inno- 
vations, that  mere  non-direction,  partial  or  total,  is  not 
ground  of  new  trial,  unless  specific  instructions,  good  in 
point  of  law  and  appropriate  to  the  evidence,  were  reques- 
ted and  refused.  A  party  cannot,  by  merely  excepting  to  a 
charge,  make  it  the  foundation  for  an  assignment  of  er- 
ror, that  it  is  indefinite  or  incomplete."  (2  Thompson  on 
Trials,  sec.  2341).  Judge  Thompson  supports  his  text  by 
a  wealth  of  authorities  in  a  note,  adding:  ''The  English 
rule  seems  to  be  that  non-direction,  where  specific  direc- 
tion is  not  requested,  is  no  ground  of  a  new  trial,  unless  it 
produce  a  verdict  against  the  evidence."  (Citing  Ford 
V.  Lacey,  30  L.  J.  (Exch.)  351;  Railroad  v.  Braid,  1  Moore, 
P.  C.  Cas.  (N.  S.)  101.) 

To  question  that  general  rule  in  Missouri  at  this  late  day 
would  be  to  spin  cobwebs  before  the  eyes  of  justice  and 
mischievously  unsettle  the  law.  This  is  so  because  our  stat- 
ute on  procedure  in  civil  cases  does  not  contemplate  in- 
structions whether  or  no.  Parties  litigant  have  their  op- 
tion to  ask  or  not  ask  for  them.  That  statute  ordains  (R. 
S.  1899,  sec.  748) :  "When  the  evidence  is  concluded,  and 
before  the  case  is  argued  or  submitted  to  the  jury  or  to  the 
court  sitting  as  a  jury,  either  party  may  move  the  court  to 
give  instructions  on  any  point  of  law  arising  in  the  cause, 
which  shall  be  in  writing  and  shall  be  given  or  refused.  The 
court  may  of  its  own  motion  give  like  instructions,  and  such 
instructions  as  shall  be  given  by  the  court  on  its  own  motion 
or  the  motion  of  counsel  shall  be  carried  by  the  jury  to  their 
room  for  their  guidance  to  a  correct  verdict  according  to 
the  law  and  evidence;  which  instructions  shall  be  returned 
by  the  jury  into  court  at  the  conclusion  of  the  deliberations 
of  such  jury,  and  filed  by  the  clerk  and  kept  as  a  part  of  the 
record  in  such  case." 

In  construing  that  section,  the  better  view  is  that  it  is 
permissive,  not  mandatory.     Doubtless  it  conduces  to  the 


454  Teial  Pkactice  [Chap.  11 

science  of  jurisprudence  and  the  orderly  administration  of 
the  law  to  have  instructions  defining  the  issues,  putting  it 
to  the  jury  to  find  the  fact  and  declaring  the  law  on  the  fact 
when  found,  but  it  is  within  the  knowledge  of  the  profession 
(and  our  decisions  show)  that  cases  are  not  infrequently 
tried,  nisi,  without  them.  That  mere  non-direction  is  not 
misdirection  is  a  familiar,  settled  rule  of  appellate  proce- 
dure. Under  that  rule,  before  appellant  can  predicate  re- 
versible error  on  what  a  trial  court  does  not  say  to  the  jury, 
he  must  first  put  the  court  in  the  wrong  by  asking  it  to  say 
something,  or  else  the  court  in  trying  to  cover  the  case  by 
instructions  holds  a  false  voice,  or  omits  in  general  instruc- 
tions essential  elements  of  the  case.  [Tetherow  v.  Rail- 
road, 98  Mo.  74;  Coleman  v.  Drane,  116  Mo.  1.  c.  394;  Brown- 
ing V.  Railroad,  124  Mo.  55;  Nolan  v.  Johns,  126  Mo.  159; 
Wilson  V.  Railroad,  122  Mo.  App.  1.  c.  672,  et  seq.,  and  cases 
cited;  Nugent  v.  Armour  Packing  Co.,  208  Mo.  1.  c.  500; 
Flaherty  v.  Railroad,  207  Mo.  1.  c.  339.) 

Here,  manifestly,  appellant  was  as  much  to  blame  as  the 
court  or  respondent  for  the  omission  to  instruct  on  vital  is- 
sues ;  for  he  by  his  silence  joined  in  the  general  silence  and 
made  it  more  profound.  At  most  it  was  common  error,  if 
any,  and  error  common  to  all  is  not  reversible  error.  Ho 
who  does  not  speak  when  he  should,  will  not  be  heard  to 
speak  when  he  would. 

The  premises  considered,  we  have  nothing  to  do  but  look 
to  the  record  and  see  if  it  supports  the  verdict.  We  find 
ample  testimony  to  support  it. 

Accordingly,  the  judgment  is  affirmed.  It  is  so  ordered. 
All  concur.^ 

y  Accord:  Stuckey  v.  Fritsrhe  (1890)  77  Wis.  329,  46  N.  W.  59;  Osgood 
V.  Skinner  (1904)  211  111.  229,  71  N.  E.  869;  Palatine  Tnp.  Co.  v.  Santa  Fe 
Meroantile  Co.  (190.5)  13  N.  Mex.  241,  82  Pac.  363;  Womaek  v.  Circle  (1877) 
29  Gratt  (Va.)  192;  Texas  &  Pacifiic  Ry.  Co.  v.  Volk  (1894)  151  U.  S.  73. 


Sec.  4]  Insteucting  the  Juby  455 

CHICAGO  CITY  EAILWAY  COMPANY  V.  SANDUSKY. 

Supreme  Court  of  Illinois.    1902. 

198  Illinois,  400. 

Me.  Justice  Boggs  delivered  the  opinion  of  the  court : 
Between  eight  and  nine  o'clock  in  the  evening  of  April 
18, 1898,  a  cable  car  which  the  appellant  company  was  opera- 
ting northwardly  along  its  tracks  in  State  street,  in  the 
city  of  Chicago,  collided  with  a  junk  wagon  in  which  the  ap- 
pellee was  riding  and  threw  him  from  his  seat  to  the  surface 
of  the  paved  street,  and  thereby  inflicted  injuries  upon  his 
person  for  which  he  was  awarded  judgment  in  the  sum  of 
$1,000  in  an  action  on  the  case  which  he  instituted  against 
the  company  in  the  superior  court  of  Cook  county.  On  ap- 
peal perfected  by  the  company  to  the  Appellate  Court  for 
the  First  District  the  judgment  was  affirmed,  and  the  cause 
is  before  us  on  a  further  appeal  in  the  same  behalf. 

After  the  plaintiff  had  rested  his  case,  and  while  the  de- 
fendant was  adducing  its  evidence,  the  court  called  the  at- 
torneys for  the  parties  and  read  to  them  the  following  order 
which  the  court  had  drawn  and  entered  in  the  case:  ''It  is 
ordered  at  this  time,  while  the  witnesses  on  the  part  of  the 
defendant  are  being  examined,  that  the  instructions  to  be 
tendered  to,  examined  or  given  by  the  court  to  the  jury  be 
limited  to  twenty-four, — twelve  on  the  part  of  the  plaintiff 
and  twelve  on  the  part  of  the  defendant, — and  that  no  in- 
struction in  excess  of  said  numbers  will  be  received  or  ex- 
amined by  the  court  or  given  to  the  jury."  The  defendant 
excepted  to  the  order,  and,  afterwards,  to  the  decision  of 
the  court  in  refusing  to  give  or  examine  twenty  instructions 
presented  in  a  body,  in  addition  to  the  twelve  handed  up 
under  the  order  of  the  court.  The  appellant  company,  in 
recognition  of  the  rule  but  under  protest,  presented  twelve 
instructions  to  be  given  or  refused  by  the  court  under  the 
rule,  and  also  presented  twenty  additional  instructions.  The 
court  declined  to  examine  or  pass  upon  any  of  the  twenty 
additional  instructions,  for  the  reason  they  were  each  in 
excess  of  the  number  of  twelve  limited  by  the  rule.     Counsel 


456  Trial  Peactice.  [Chap.  11 

for  appellant  preserved  exceptions  to  this  ruling  of  the 
court. 

So  far  as  we  are  advised,  the  power  of  a  trial  court  to 
limit  requests  for  instructions  to  an  arbitrary  number  from 
each  litigant  has  never  received  the  consideration  of  a  court 
of  review.  The  power  of  the  judge  to  prescribe  a  reason- 
able rule  regulating  the  presentation  of  instructions  to  be 
given  or  refused  is  everywhere  conceded.  Rules  that  in- 
structions will  not  be  considered  if  presented  after  the  be- 
ginning of  the  argument  to  the  jury,  or  during  the  course  of 
the  argument  to  the  jury,  or  during  the  course  of  the  gen- 
eral charge,  or  after  the  judge  has  concluded  his  general 
charge,  or  after  the  cause  has  gone  to  the  jury,  or  after  the 
jury  had  come  in  and  disagreed,  have  been  sustained,  (11 
Ency.  of  PI.  &  Pr.  240;  Prindiville  v.  People,  42  111.  217.) 
In  Prindiville  v.  People,  supra,  the  rule  had  been  adopted 
by  the  trial  court  requiring  that  the  instructions  should  be 
presented  before  the  commencement  of  the  argument  of  the 
cause.  The  appellant  presented  additional  instructions 
while  the  attorney  for  the  People  was  making  his  closing 
argument  to  the  jury,  and  they  were  refused  under  the  rule. 
The  instructions  were  not  embodied  in  the  bill  of  exceptions, 
and  we  held  we  could  not  know  but  that  the  court  ought  to 
have  refused  them  independently  of  the  rule,  and  therefore 
did  not  determine  whether  the  rule  under  consideration 
was  reasonable.  We  there  indulged  in  the  following  ob- 
servations, (p.  222)  which  meet  our  approval,  viz.:  "The 
dispatch  of  business,  the  rights  of  litigants,  jurors  and  wit- 
nesses, all  require  that  the  time  of  the  court  shall  not  be 
unnecessarily  consumed  in  the  trial  of  causes,  and  to  avoid 
such  consequences  courts  must  be  invested  with  power  to 
adopt  all  reasonable  rules  for  the  practice  of  their  courts. 
Ever  since  the  adoption  of  the  statute  requiring  all  instruc- 
tions to  be  reduced  to  writing  before  they  are  given,  it  is 
believed  that  similar  rules  have  been  in  force  in  all  of  the 
circuit  courts  in  th»  State.  They  have  varied  slightly  in 
their  requirements,  but  all  are  designed  to  attain  the  same 
end.  The  rule  which  is  believed  to  have  most  generally  ob- 
tained requires  all  instructions  to  be  furnished  the  court  by 
the  commencement  of  the  closing  argument.  That,  it  seems 
to  us,  is  well  calculated  to  meet  the  convenience  of  both 
parties  and  the  court  and  to  economize  time,  and  can  in  no 


Sec.  4]  Instructing  the  Jury  457 

way  hinder  or  prevent  the  attainment  of  a  fair  trial  by  both 
parties.  So  far  as  our  observation  has  extended  such  a 
rule  has  operated  well.  It  gives  ample  time  after  the  close 
of  the  evidence  and  the  case  fully  opened  to  the  jury  for  both 
parties  to  prepare  their  instructions,  and  the  court,  being 
thus  apprised  of  the  legal  propositions  they  have  assumed, 
has,  after  the  instructions  are  thus  presented,  usually  ample 
time  for  their  examination  and  to  determine  upon  their  cor- 
rectness. It  is  essential  that  the  court  shall  exercise  such 
power,  through  reasonable  and  proper  rules,  as  shall  enable 
him  to  dispatch  business  at  least  so  fast  as  the  proper  ad- 
ministration of  justice  may  require." 

We  do  not  wish,  however,  to  bQ  understood  to  hold  that 
another  mode  or  manner  of  regulating  the  presentation  of 
instructions  than  that  referred  to  may  not  be  adopted.  We 
are  inclined,  however,  to  regard  as  unreasonable  a  hard  and 
fast  rule  that  instructions  shall  be  limited  to  a  given  num- 
ber. It  is  the  prolixity  and  confusing  character  of  the 
charge,  as  a  whole,  that  rules  of  this  character  are  designed 
to  obviate.  Restriction  in  point  of  number,  only,  of  the  in- 
structions will  not  remove  the  evil.  A  number  of  concise, 
clear  instructions,  each  of  which  is  confined  to  a  distinct 
branch  or  phase  of  the  contention  or  distinct  proposition  of 
law,  is  preferable  to  one  long,  diffuse  and  complicated 
instruction,  which  includes  within  its  range  all  or  several 
of  the  propositions  or  phases  of  the  case  and  attempts  to 
advise  the  jury  as  to  different  and  independent  legal  propo- 
sitions. A  general  charge,  consistins:  of  instructions  of  the 
latter  character,  though  not  exceeding  the  number  permit- 
ted by  the  rule,  would  be  more  objectionable,  from  every 
proper  point  of  view,  than  a  charge  composed  of  instruc- 
tions which,  though  short  and  clear  and  of  a  character  to 
enlighten  the  jury,  exceeded  the  number  allowed  by  the 
rule.  It  is  unreasonable  to  a!5<sumo  that  each  of  the  par- 
ties needs  the  same  number  of  instructions.  The  issues  in 
behalf  of  one  may  make  a  number  of  instructions  necessary 
while  the  jury  need  little  information  as  to  those  for  the 
other  party.  The  judge  could  not,  by  a  general  rule  appli- 
cable to  all  cases  or  classes  of  cases  or  causes  of  action,  de- 
termine and  specify,  in  advance  of  the  hearing,  the  number 
of  instructions  proper  and  requisite  to  be  used  in  all  cases. 
If  the  court  should  wait  until  the  conclusion  of  the  evidence 


458  Trial  Peactice.  [Chap.  11 

m  the  cause  and  then  determine  the  number  of  instructions 
he  would  consider,  the  rule  would  be  unreasonable  in  its 
operation  upon  counsel,  in  that  it  would  interfere  with  or 
prohibit  the  practice,  adopted  by  many  careful  and  compe- 
tent lawyers,  of  preparing  their  instructions  in  advance  of 
the  trial.  The  court  may  refuse  instructions  which  are  but 
repititions  of  others  of  the  series  which  he  has  given,  and 
thus  the  number  of  instructions  may  be  restricted  to  the 
propositions  of  law  really  involved;  and  any  rule  which 
would  authorize  the  refusal  of  an  instruction  otherwise 
proper  to  be  given,  on  the  ground,  alone,  that  as  many  in- 
structions as  the  rule  allowed  had  been  given,  could  not  be 
defended.  5  , 

But  the  cause  will  not  be  reversed  because  of  the  error 
of  the  court  in  adopting  the  rule.  The  bill  of  exceptions 
contains  the  instructions  which  the  court  refused  to  ex- 
amine. Counsel  for  appellant,  in  their  brief,  point  out  but 
one  instruction  among  the  twenty  which  the  court  refused 
to  consider,  which,  in  the  view  of  counsel,  was  necessary  to 
advise  the  jury  as  to  any  principle  of  law  important  to  the 
defense  to  the  action.  The  substance  of  this  instruction 
was,  that  in  arriving  at  a  conclusion  as  to  the  truth  of  the 
statements  made  by  any  witness  the  jury  might  consider 
the  improbable  character  of  such  statements.  The  fifth  in- 
struction given  in  behalf  of  the  plaintiff  below  correctly 
stated  the  proposition  of  law  referred  to  in  the  instruction 
which  was  not  passed  upon.  It  was  not  necessary  it  should 
have  been  repeated.  As  it  is  not  complained  that  any  other 
of  the  instructions  which  were  refused  under  the  rule  were 
necessary  to  the  proper  presentation  of  the  defense,  the 
judgment  should  not  be  reversed  for  the  error  in  adopting 
the  rule. 

The  judgment  is  affirmed. 

Judgment  affirmed} 

1  In  Sidway  v.  Missouri  Land  &  Live  Stock  Co.  (1901)  163  Mo.  342,  376, 
the  court  said:  "Next  for  consideration  are  the  instructions,  respecting  which 
v,-e  say  that  nine  and  one-half  printed  pages  of  instructions  is  too  much  for  an 
average  jury  to  digest  and  understand.  The  only  effect  of  such  a  midti- 
plicity  of  instructionp  would  be  rot  to  instruct  the  jury  but  to  confuse  and 
mislead  them;  make  their  verdict  mere  (jvessworJc.  The  changes  rung  on  all 
tho  phases  of  this  case,  and  some  not  of  this  case,  by  this  vast  array  of  in- 
structions, reminds  one  of  what  Judge  Scott  used  to  say  was  'like  the  mvdti- 
ydication  table  set  to  music'  We  have  remonstrated  with  the  trial  courts 
for  years  about  the  great  impropriety  and  frequent  injustice  resulting  from 
writing  or  giving  instructions  by  the  acre,  but  without  avail,   and  so  resort 


Sec.  4]  Instructing  the  Jury.  459 

must  be  had  to  more  drastic  measures.  We  therefore  hold  that  the  great 
number  of  instructions  given  in  this  instance,  of  itself,  warrants  a  reversal 
of  the  judgment." 


CHESAPEAKE    &    OHIO    RAILWAY    COMPANY    V. 

STOCK. 

Supreme  Court  of  Appeals  of  Virginia.     1905, 

104  Virginia,  97. 

Keith,  P.,  delivered  the  opinion  of  the  court. 

The  eleventh  assignment  of  error  is  a  novel  one.  After 
the  jury  had  been  instructed,  plaintiff  in  error  presented 
the  following  request  to  the  court : 

''The  defendant  prays  the  court  that  should  the  hypo- 
thesis of  the  facts  whereon  the  several  instructions  pro- 
pounded by  it  be  incorrect,  or  should  the  said  instructions 
be  inartificially  or  incorrectly  expressed,  or  should  the  con- 
clusion of  law  therein  announced  be  incorrectly  stated,  that 
the  court  will  so  amend  the  same  as  to  accord  with  the  facts 
and  law  of  this  case,  to  the  end  that  the  jury  may  be  duly 
instructed  on  the  phases  of  the  case  at  bar  presented  by  the 
said  instructions." 

Which  the  court  refused.  *  *  * 

This  court  has  held  in  numerous  cases  that  a  trial  court  is 
bound  to  give  any  instruction  asked  for  by  either  party 
which  correctly  expounds  the  law  upon  the  e\'idence  before 
the  jury.  "But  if  such  instruction  does  not  correctly  ex- 
pound the  law,  the  court,  as  a  general  rule,  may  refuse  to 
give  it,  and  is  not  bound  to  modify  it  or  give  any  other  in- 
struction in  its  place.  This  principle  is  founded  on  good 
reasons,  and  is  sustained  by  much  authority.  A  party  can- 
not, by  asking  for  an  erroneous  instruction,  devolve  upon 
the  court  the  duty  of  charging  the  jury  on  the  law  of  the 
case.  An  instruction,  as  asked  for,  may  be  so  equivocal, 
that  to  give  or  refuse  it  might  mislead  the  jury,  and  thus 
it  might  have  all  the  effect  of  an  erroneous  instruction.  In 
such  a  case,  it  would  be  proper  for  the  court  to  modify  the 
instruction    so    as    to    make    it    plain."    Rosenbaums    v. 


460  Trial  Peactice.  [Chap.  11 

Weeden,  etc.,  18  Gratt.  799,  98  Am.  Dec.  737 ;  B.  d  0.  R.  Co. 
V.  Polly,  Woods  £  Co.,  14  Gratt.  448;  Peshine  v.  Shepper- 
son,  17  Gratt.  472,  94  Am.  Dec.  468. 

It  cannot  be  doubted  that,  if  the  instruction  correctly 
states  the  law,  and  there  be  sufficient  evidence  to  support 
the  verdict,  it  should  be  given.  It  is  equally  plain  that  if 
it  does  not  correctly  state  the  law,  it  should  not  be  given. 
The  sole  question  is  as  to  the  duty  of  the  court  to  amend  an 
instruction  offered  by  counsel.  The  rule  as  stated  in  Ro- 
senhaums  v.  Weeden,  supra,  and  approved  in  numerous  de- 
cisions of  this  court,  is  that  when  an  instruction  offered  is 
equivocal,  so  that  either  to  give  or  refuse  it  might  mislead 
the  jury,  the  duty  is  imposed  upon  the  court  so  to  modify 
it  as  to  make  it  plain ;  that  if  it  be  right,  it  should  be  given ; 
if  it  be  wrong,  it  should  be  rejected;  if  it  be  equivocal,  it 
should  be  amended.  By  what  test  is  a  court  to  measure 
the  duty  thus  imposed,  and  how  is  a  jury  to  be  misled  by  an 
instruction  which  the  court  declines  to  give?  An  equivocal 
instruction  of  course  should  not  be  given,  because  an 
equivocal  instruction  is  an  inaccurate  expression  of  the  law, 
and  for  that  reason  should  be  refused.  To  say  that  a  jury 
may  be  misled  by  a  refusal  to  give  an  instruction,  and  there- 
fore the  instruction  should  be  amended  and  given,  is  to 
prescribe  a  rule  so  vague  and  indefinite  as  to  embarrass 
rather  than  to  assist  trial  courts  in  the  performance  of  their 
duty.  It  is  the  duty  of  juries  to  respect  the  instructions 
given  them.  It  is  not  to  be  supposed  that  they  have  any 
knowledge  with  respect  to  those  which  the  court  refuses 
to  give;  and  finally,  if  it  be  conceded  that  the  offer  of  in- 
structions, their  discussion,  and  the  judgment  of  the  court 
upon  them,  take  place  in  the  presence  of  the  jurors,  it  is  an 
impeachment  of  their  integrity,  or  of  their  intelligence,  to 
assume  that  they  were  influenced  or  misled  by  what  has  oc- 
curred. 

But  however  this  may  be,  we  know  of  no  authority,  in  this 
court  or  elsewhere,  wliich  imposes  ui)on  trial  courts  the  bur- 
den sought  to  be  placed  upon  them  by  the  ''prayer"  under 
consideration. 

The  rule  which  prevails  in  other  jurisdictions  is  thus 
stated  Blashfield  on  Instruction  to  Juries,  sec.  137,  and  is 
supported  by  the  great  weight  of  authority:  "In  order  to 
entitle  a  party  to  insist  that  a  requested  instruction  be  giv- 


Sec.  5]  Insteucting  the  Jury.  461 

en  to  the  jury,  such  instruction  must  be  correct  both  in  form 
and  substance,  and  such  that  the  court  might  give  to  the 
jury  without  modification  or  omission.  If  the  instruction, 
as  requested,  is  objectionable  in  any  respect,  its  refusal  is 
not  error.  A  party  cannot  complain  that  the  court  did  not, 
of  its  own  motiuu,  modify  and  correct  the  request  and  then 

give  it  as  corrected.     No  such  duty  rests  upon  the  court." 

********** 

Reversed. 


Section  5.    Cautionary  Instructions. 

(a)     Admissions. 

SCURLOCK  V.  CITY  OF  BOONE. 

Supreme  Court  of  Iowa.    1909. 

142  Iowa,  580. 

Evans,  C.  J. — The  plaintiff  was  a  resident  of  the  defend- 
ant city.  On  February  26,  1907,  she  claims  to  have  fallen 
upon  one  of  the  sidewalks  by  reason  of  a  loose  board  there- 
on. The  claim  is  that  her  grandson,  who  was  walking  at 
her  side,  stepped  upon  one  end  of  the  board,  whereby  the 
other  end  was  thrown  up  against  the  plaintiff  in  such  a  way 
as  to  cause  her  to  fall.  It  is  claimed  that  she  suffered  in- 
ternal injuries  either  by  the  fall  or  by  the  blow  from  the 
board.  It  was  claimed  at  the  time  of  trial  that  she  was  then 
in  a  poor  state  of  health,  and  one  of  the  issues  of  fact  in 
dispute  was  whether  her  then  condition  was  caused  by  the 
accident  complained  of. 

II.  It  appeared  from  the  testimony  on  behalf  of  the 
plaintiff  that  prior  to  the  accident  she  had  always  maintain- 
ed good  health.  On  Ijehalf  of  the  defendant,  Mrs.  Miller 
and  Mrs.  Ball,  her  daughter,  both  testified  that  on  one  oc- 
casion, about  two  years  previous,  the  plaintiff  called  at  their 
home  at  Ames,  and  that  she  stated  to  them  at  that  time 
that  she  was  in  very  poor  health.  T.  L.  Jones,  one  of  the 
city  council,  testified  also  that  prior  to  the  accident  the 


462  Teial  Practice.  [Chap.  11 

plaintiff  had  frequently  told  him  that  she  was  not  well. 
None  of  this  testimony  was  denied  by  the  plaintiff,  either 
directly  or  indirectly;  nor  did  she  refer  to  it  in  any  way  in 
her  rebuttal  testimony.  The  court  gave  to  the  jury  the  fol- 
lowing instruction.  "  (IS^^)  There  is  some  evidence  in  this 
ease  with  respect  to  an  admission  by  the  plaintiff  in  regard 
to  the  condition  of  her  health  at  a  time  prior  to  the  acci- 
dent. Verbal  admissions,  consisting  of  mere  representa- 
tions of  oral  statements,  made  a  long  time  before,  are  sub- 
ject to  much  imperfection  and  mistakes,  for  the  reason  that 
the  person  making  them  may  not  have  expressed  her  own 
meaning,  or  the  witness  may  not  have  understood  her,  or, 
by  not  giving  her  exact  language,  may  have  changed  the 
meaning  of  what  was  actually  said,  and  this  is  especially 
true  where  a  long  time  has  elapsed  since  the  alleged  ad- 
mission was  made.  Such  evidence  should  therefore  be  re- 
ceived by  you  with  caution."  This  instruction  is  earnestly 
challenged  by  the  appellant.  We  are  constrained  to  hold 
that  it  can  not  be  sustained.  This  court  has  heretofore  ap- 
proved the  rule  on  this  point  as  laid  down  by  Greenleaf.  1 
Greenleaf,  section  200;  Martin  v.  Town  of  Algona,  40  Iowa, 
?m;  Allen  V.  Kirk,  81  Iowa,  670. 

It  will  be  observed  that  the  instruction  under  considera- 
tion, through  probable  oversight,  falls  short  of  stating  the 
Greenleaf  rule.  As  set  forth  in  the  Martin  case,  supra,  the 
following  should  have  been  added:  ''But  when  such  admis- 
sions are  deliberately  made  or  often  repeated,  and  are  cor- 
rectly given,  they  are  often  the  most  satisfactory  evidence, 
and  the  jury  should  consider  all  the  circumstances  under 
which  they  were  made  and  give  them  such  weight  as  they 
are  justly  entitled  to  receive."  This  latter  proviso  gives 
a  proper  balance  to  the  rule.  An  instruction  substantially 
in  the  form  of  the  one  under  consideration  was  condemned 
by  this  court  in  Hawes  v.  B.,  C.  R.  &  N.  Ry.  Co.,  64  Iowa, 
315.  See,  also,  Castner  v.  Railway  Co.,  126  Iowa,  586.  The 
natural  effect  of  the  court's  instruction  as  given  was  to 
minimize  unduly  the  testimony  of  the  defendant  on  the  sub- 
ject referred  to,  and  this  is  especially  so  in  view  of  the  fact 
that  the  plaintiff'  neither  denied  the  statements  attributed  to 
her,  nor  denied  recollection  of  them,  nor  offered  any  ex- 
planation. 

Tho  tendency  of  this  instruction  to  minimize  the  evidence 


Sec.  5]  Instructing  the  Jury.  463 

referred  to  was  further  empliasized  by  the  use  of  the  word 
"some"  in  the  first  sentence.  This  court  has  heretofore 
condemned  the  use  of  this  word  in  this  connection,  in  that 
its  tendency  is  to  belittle  the  evidence  referred  to.  State 
V.  Donovan,  61  Iowa,  369;  State  v.  Borland,  103  Iowa,  174; 
State  V.  Rutledge,  135  Iowa,  581.  We  feel  constrained 
therefore  to  hold  that  defendant's  exception  to  this  instruc- 
tion must  be  sustained. 

********** 

For  the  error  pointed  out  in  instruction  121/2  the  judg- 
ment below  must  be  reversed.''- 

-i.  Accord:  Allen  v.  Kirk  (1891)  81  Iowa,  658,  47  N.  W.  906;  Stewart  v. 
De  Loach  (1890)  86  Ga.  729,  12  S.  E.  1067;  Tozer  v.  Hershey  (1870)  15 
Minn.  257;  Haven  v.  Markstrum  (1886)  67  Wis.  493,  30  N.  W.  720. 


KAUFFMAN  V.  MAIER. 

Supreme  Court  of  California.     1892. 

94  California,  269. 

Harrison,  J. — The  plaintiff  brought  this  action  against 
the  defendants  to  recover  damages  for  personal  injuries 
alleged  to  have  resulted  from  their  negligence.  He  was  in 
their  employ  at  the  time  of  the  injury,  and  the  negligence 
charged  upon  them  was  their  permitting  the  shaft  of  a 
wheel  to  protrude  into  the  room  where  he  was  at  work,  by 
reason  of  which  his  sleeve  was  caught  upon  the  jagged  end 
of  the  shaft,  causing  him  to  be  carried  around  it,  whereby 
his  arm  was  so  injured  as  to  require  amputation.  The 
plaintiff  recovered  judgment  in  the  court  below,  and  a  new 
trial  was  granted  upon  the  motion  of  the  defendants,  and 
from  this  order  the  plaintiff  has  appealed.  In  their  state- 
ment upon  the  motion  for  a  new  trial,  the  defendants  have 
assigned  various  errors  of  law  on  the  part  of  the  court,  as 
well  as  many  particulars  in  which  the  evidence  is  claimed 

to  be  insufficient. 

********** 

5.  Evidence  was  given  at  the  trial  tending  to  show  that 
shortly  after  the  injury  the  plaintiff  had  made  statements 


464  '  Tkial  Practice.  [Cliap.  11 

to  the  effect  had  it  was  the  result  of  his  own  fault,  and  that 
the  accident  had  been  brought  about  by  a  different  cause 
from  that  shown  at  the  present  trial.  In  its  instructions 
to  the  jury,  the  court  said:  ''The  court  instructs  the  jury 
that  although  parol  proof  of  the  verbal  admissions  of  a 
party  to  a  suit,  when  it  appears  that  the  admissions  were 
understandingly  and  deliberately  made,  often  afford  satis- 
factory evidence,  yet,  as  a  general  rule,  the  statements  of 
the  witnesses  as  to  the  verbal  admissions  of  a  party  should 
be  reviewed  by  the  jury  with  great  caution,  as  that  kind  of 
evidence  is  subject  to  much  imperfection  and  mistake.  The 
party  himself  may  have  been  misinformed,  or  may  not  have 
clearly  expressed  his  meaning  or  the  witness  may  have  mis- 
understood him ;  and  it  frequently  happens  that  the  witness, 
by  unintentionally  altering  a  few  expressions  really  used, 
gives  an  effect  to  the  statement  completely  at  variance  with 
what  the  party  did  actually  say.  But  it  is  the  province  of 
the  jury  to  weigh  such  evidence,  and  give  it  the  considera- 
tion to  which  it  is  entitled,  in  view  of  all  the  other  evidence 
in  the  case." 

In  thus  instructing  the  jury,  the  court  disregarded  the 
provision  of  the  constitution  that  ''judges  shall  not  charge 
juries  with  respect  to  matters  of  fact,  but  may  state  the 
testimony  and  declare  the  law." 

While  it  is  a  matter  of  common  knowledge  that  the 
statements  of  a  witness  as  to  the  verbal  admissions  of 
another  are  liable  to  be  erroneous,  and  for  that  reason 
should  be  received  with  caution,  yet  such  conclusion  is  only 
an  inference  of  fact  which  must  be  made  by  the  jury,  and 
is  not  a  presumption  or  a  conclusion  of  law  to  be  declared 
by  the  court.  The  reasons  which  are  to  be  urged  in  favor 
of  receiving  such  statements  with  caution  are  based  upon 
human  experience,  and  vary  in  strength  and  conclusive- 
ness with  the  facts  and  circumstances  of  each  case,  and 
their  sufficiency  in  any  particular  case  is  an  inference 
which  the  reason  of  the  jury  makes  from  those  facts  and 
circumstances ;  but  there  is  no  rule  of  law  which  directs  the 
jury  to  invariably  make  such  an  inference  from  the  mere 
fact  that  the  proof  of  the  admission  is  by  oral  testimony. 
That  deduction  called  a  presumption  which  the  law  ex- 
pressly directs  to  be  made  from  particular  facts  is  uniform, 
and  not  dependent  upon  the  varying  conditions  and  circum- 


Sec.  5]  Instructing  the  Jury  465 

stances  of  individual  cases.  To  weigh  the  evidence  and 
find  the  facts  in  any  case  is  the  province  of  the  jury,  and 
that  province  is  invaded  by  the  court  whenever  it  instructs 
them  that  any  particular  evidence  which  has  been  laid  be- 
fore them  is  or  is  not  entitled  to  receive  weight  or  con- 
sideration from  them.  {People  v.  Walden,  51  Cal.  588; 
People  V.  Fong  Ching,  78  Cal.  173 ;  Mauro  v.  Piatt,  62  111. 
450;  Commonwealth  v.  Galligan,  113  Mass.  202;  McNeil  v. 
Barney,  51  Cal.  603;  People  v.  Dick,  34  Cal.  666.) 

The  instruction  above  quoted  is,  in  substance,  an  argu- 
ment to  the  jury  with  ''respect  to  matters  of  fact"  that 
had  been  presented  at  the  trial,  and  a  comment  by  the  court 
upon  the  weight  which  they  should  give  to  that  testimony. 
Whether  the  facts  and  circumstances  proved  in  the  case 
were  sufficient  to  cause  the  reason  of  the  jury  to  make  this 
inference  was  fair  matter  of  argument  for  the  counsel  of 
the  respective  parties;  but  the  court  forsook  its  judicial 
position  when  it  assumed  the  office  of  commenting  upon  the 
weight  and  credibility  of  this  evidence.  The  closing  para- 
graph in  the  instruction,  to  the  effect  that  it  was  for  the 
jury  to  give  to  the  evidence  the  consideration  to  which  it 
was  entitled,  did  not  obviate  the  error,  as  by  its  remarks 
the  court  had,  in  substance,  said  to  them  that  as  matter  of 
law  the  evidence  was  not  entitled  to  any  great  considera- 
tion. 

The  order  is  affirmed. 

Sharpstein,  J.,  Garoutte,  J.,  and  McFarland,  J.,  con- 
curred.^ 

1  Accord'.  Knowles  v.  Nixon  (1896)  17  Mont.  473,  43  Pac.  628;  Johnson 
V.  Stone  (1892)  69  Miss.  826,  13  So.  850. 


T.  P.— 30 


466  Trial  Peactice.  [Chap.  11 

(b)     Burden  of  Proof. 
CRABTREE  V.  REED. 

Supreme  Court  of  Illinois.    1869, 
50  Illinois,  206. 

Mb.  Chief  Justice  Breese  delivered  the  opinion  of  the 
court: 

The  only  question  between  the  parties  to  this  record  was, 
as  to  the  value  of  a  mule  the  appellee  acknowledged  he  had 
struck  with  a  heavy  stick,  and  which  belonged  to  the  appel- 
lant, causing  its  death. 

The  action  was  case,  for  killing  the  mule,  and  the  court, 
on  behalf  of  defendant,  instructed  the  jury  that  the  burden 
of  proof  rested  upon  the  plaintiff,  and  that  he  was  bound 
to  maintain,  by  a  clear  preponderance  of  evidence,  the  alle- 
gations in  the  declaration,  and  that  unless  they  find  such 
a  preponderance,  they  will  find  for  the  defendant.  Though 
the  defendant  had  admitted  he  struck  the  mule  in  disciplin- 
ing him,  he  not  having  been  broke  to  work,  and  that  from 
the  blow  the  mule  died,  he  contested  the  fact  of  killing  be- 
fore the  jury,  and  under  the  above  instruction,  the  jury 
found  for  him. 

This  instruction  must  certainly  have  misled  the  jury. 
The  law  is  not,  in  such  a  case,  that  there  shall  be  a  clear 
preponderance  of  evidence  in  favor  of  the  plaintiff  to  en- 
title him  to  recover.  It  is  sufficient,  if  the  evidence  creates 
probabilities  in  his  favor — that  the  weight  of  the  evidence 
inclines  to  his  side. 

For  this  error  the  judgment  must  be  reversed  and  the 
cause  remanded. 

Judgment  reversed. 


Sec.  5]  Instructing  the  Jury  467 

ALTSCHULER  V.  COBURN. 

Supreme  Court  of  Nebraska.    1894. 

38  Nebraska,  881. 

Post,  J. 

This  was  an  action  of  replevin  in  the  district  court  of 
Douglas  county  in  which  the  plaintiff  in  error,  Marguerite 
Altschuler,    sought    to    recover    certain    personal    prop- 

********** 

6.  Exception  was  taken  to  the  following  instruction: 
"The  burden  of  proof  in  this  case  is  on  the  plaintiff  to 
show  by  a  preiDonderance  of  the  testimony  her  right  to  the 
possession  of  the  property  in  controversy  at  the  commence- 
ment of  this  suit,  and  unless  she  has  satisfied  you  by  a  fair 
preponderance  of  the  testimony  of  her  right  to  such  posses- 
sion, she  cannot  recover  in  this  action."  The  criticism  of 
the  instruction  is  directed  to  the  expression  "fair  pre- 
ponderance" of  the  evidence  used  therein.  In  support  of 
this  exception  we  are  referred  by  counsel  to  Search  v.  Mil- 
ler, 9  Neb.  26,  and  Marx  v.  Kilpatrick,  25  Neb.  118,  in  which 
the  expression  "clear  preponderance  of  the  evidence"  is 
condemned.  But  in  Dunbar  v.  Briggs,  18  Neb.  94,  an  in- 
struction was  approved  which  required  a  counter-claim  to 
be  established  by  a  fair  preponderance  of  the  evidence. 
The  last  case  is  in  point  and  decisive  of  the  question  pre- 
sented by  this  exception.  In  the  opinion  of  the  writer,  any 
attempt  to  qualify  that  term  by  subtle  distinctions  between 
a  clear  preponderance  and  a  fair  preponderance  of  the 
evidence  is  to  be  deprecated  as  an  unnecessary  refinement 
and  tending  to  confuse  rather  than  enlighten  the  average 
mind.  "Preponderance"  is  defined  by  Webster  thus:  "An 
outweighing;  superiority  of  weight."  There  can  be  no  pre- 
ponderance while  the  evidence  is  evenly  balanced,  hut 
when  the  scale  inclines  toward  one  side,  we  know  the  weight 
or  superiority  of  evidence  is  with  that  party.  Manifestly 
there  can  be  no  such  outweighing  unless  there  is  both  a 
clear  preponderance  and  a  fair  preponderance.  As  well 
might  we  attempt  to  apply  degrees  of  comparison  to  the 


468  Tbial  Pkactioe  [Chap.  11 

term  ''equilibrium"  by  holding  the  evidence  in  one  case 
more  evenly  balanced  than  in  another.  Applicable  in  this 
connection  is  the  language  used  in  Stephen's  General  View 
of  the  Criminal  Law,  p.  262,  with  reference  to  the  term 
"reasonable  doubt,"  where  it  is  said  that  an  attempt  to 
give  a  specific  meaning  to  the  word  "reasonable"  is  "try- 
ing to  count  what  is  not  number,  and  measure  what  is  not 
space." 

********** 

We  find  no  prejudicial  error  in  the  record  and  the  judg- 
ment is  accordingly 

Affirmed, 


(c)     Positive  and  Negative  Testimony. 

IN  EE  ESTATE  OF  WHARTON. 

Supreme  Court  of  Iowa.    1907, 

132  Iowa,  714. 

This  is  a  proceeding  for  the  probate  of  the  will  of 
Stephen  Wharton,  deceased,  offered  for  probate  by  A.  M. 
Harrah,  devisee,  who  is  also  named  as  executor,  to  act 
without  bond,  and  contested  by  George  Wharton,  his  son, 
and  Esther  Wharton,  his  widow,  who,  having  been  adjudged 
insane,  is  represented  by  a  guardian.  The  grounds  of  con- 
test were  want  of  mental  capacity,  and  undue  influence. 
There  was  a  special  finding  of  want  of  mental  capacity  by 
the  jury,  a  general  verdict  in  favor  of  contestants,  and  a 
judgment  entered  on  such  verdict,  denying  and  refusing 
admission  of  the  will  to  probate.    Proponent  appeals. 

Affirmed. 

McClain,  C.  J. — Many  errors  are  assigned  as  to  the 
action  of  the  trial  court,  and  it  will  only  be  possible  to  dis- 
cuss those  which  seem  to  this  court  to  be  of  controlling  im- 
portance. 

**#*»«4<'*** 

VI.  Another  instruction  is  complained  of  which  direct- 
ed the  jury  that,  other  things  being  equal,  affirmative  testi- 


Sec.  5]  Instkucting  the  Juey  469 

mony  is  in  general  entitled  to  more  weight  than  negative 
testimony,  and  that,  if  a  witness  testifies  that  he  did  see 
certain  things,  and  another  witness  of  equal  credibility  tes- 
tifies that  he  did  not  see  such  things,  then  if  everything  else 
is  equal  and  such  witnesses  on  either  side  are  of  equal  cred- 
ibility, the  witness  testifying  negatively  is  entitled  to  less 
credit  than  the  one  testifying  affirmatively.  It  is  said  that 
this  rule,  which  certainly  has  some  support  in  our  decisions, 
has  been  discredited  in  Stanley  v.  Cedar  Rapids  &  Marion 
City  R.  Co.,  119  Iowa,  526,  533,  and  Selensky  v.  Chicago  G. 
W.  R.  Co.,  120  Iowa,  113,  116.  But  in  each  of  these  cases 
the  instruction  asked  to  this  general  effect  was  held  proper- 
ly refused,  because  witnesses  who  gave  the  so-called  nega- 
tive evidence,  or  some  of  them,  were  in  as  good  a  position 
to  hear  the  sounds  and  signals  referred  to  in  the  testimony 
of  the  witnesses  giving  the  affirmative  evidence  as  the  latter 
were.  But  the  instruction  given  in  this  case  is  not  open 
to  any  such  objection,  and,  under  the  evidence  to  which  the 
instruction   could   have   been  understood  by  the  jury  as 

having  reference,  there  was  no  error  in  giving  it. 

********** 

The  judgment  of  the  trial  court  is  affirmed. 

'i  Accord:     Loiiisville,  New  Albany  &  Chicago  Ey.  Co.  v.  Shires   (1884)   108 
111.  617;  Jones  v.  Casler  (1894)   139  Ind.  382,  38  iST.  E.  812. 


McLEAN  V.  ERIE  RAILROAD  COMPANY. 

Supreme  Court  of  New  Jersey.     1003. 

69  Neiv  Jersey  Laiv,  57. 

The  opinion  of  the  court  was  delivered  by 
Fort,  J. — This  was  an  action  for  damages  alleged  to 
have  resulted  from  an  injury  caused  by  the  train  of  the 
defendant  company  running  into  a  wagon  of  the  plaintiff, 
in  which  the  plaintiff  was.  at  the  crossing  of  the  said  com- 
pany, at  or  near  Soho,  in  Essex  county. 

****#***'#» 

Another  alleged  error  was  on  account  of  the  refusal  of 
the  trial  judge  to  charge  the  following  request:     ''That 


470  Trial  Pkactice.  [Chap.  11 

affirmative  evidence  of  the  ringing  of  the  bell  and  blowing 
of  the  whistle  is  generally  entitled  to  more  weight  than 
evidence  that  it  was  not  noticed  or  heard."  We  are  unable 
to  see  upon  what  principle  a  judge  is  justified  in  stating  to 
a  jury  that  one  piece  of  evidence,  which  is  legitimate,  is 
not  to  be  treated  by  the  jury  the  same  as  other  evidence  in 
the  cause.  It  is  for  the  jury  to  say  whether  the  testimony 
of  a  witness  having  an  equal  opportunit}^  to  hear  and  whose 
hearing  is  equally  good,  and  who  testifies  that  he  did  not 
hear  the  blowing  of  a  whistle  or  the  ringing  of  a  bell,  not- 
withstanding he  listened,  shall  or  shall  not  be  given  equal 
credit  with  the  testimony  of  a  witness,  similarly  situated, 
who  testifies  that  he  did  hear. 

There  was  no  error  in  the  refusal  of  the  trial  judge  to 
charge  the  request  excepted  to. 

The  judgment  of  the  Circuit  Court  is  affirmed.^ 

1  Accord:  Atlantic  Coast  Line  R.  R.  Co.  v.  O'Neill  (1906)  127  Ga.  685, 
56  S.  E.  986;  St.  Louis  &  San  Francisco  R.  R.  Co.  v.  Brock  (1904)  69  Kan. 
448,   77  Pac.  86, 


(d)    Credibility  of  Witnesses. 

CLINE  V.  LINDSEY. 

Supreme  Court  of  Indiana.     1886. 

110  Indiana,  337. 

ZoLLARs,  J. — Lewis  J.  Cline  died  on  the  26th  day  of  Janu- 
ary, 3884.  By  his  last  will,  executed  on  the  22d  day  of  that 
month,  he  bequeathed  all  of  his  property  to  appellants, 
children  of  a  brother. 

Appellees  brought  this  action  to  set  aside  that  will  on  the 
ground  that  at  the  time  it  was  executed,  the  testator  was 
a  person  of  unsound  mind,  and  hence  incapable  of  making  a 
valid  will.  With  the  will  out  of  the  way,  appellees  and  the 
father  of  appellants  are  entitled  to  the  property  left  by 
Lewis  J.  nine,  as  his  heirs  at  law,  being  his  brothers,  sis- 
ter, and  the  descondants  of  deceased  sisters. 

Upon  a  verdict  of  tlio  jury  in  favor  of  appellees,  the 
court  ])elc)w,  over  ajipollants'  motion  for  a  new  trial,  set 


Sec.  5]  Instructing  the  Jury  471 

aside  the  will.    Appellants  ask  for  a  reversal  of  the  judg 
ment  upon  the  alleged  error  of  the  court  in  charging  the 
jury. 

Our  attention  is  first  called  to  the  twentieth  instruction 
given  by  the  court.    It  is  as  follows : 

'"20th.  In  weighing  the  testimony  of  witnesses,  the  jury 
should  consider  their  capacity  to  understand  the  facts  about 
which  they  testify,  their  opportunity  of  knowing  the  mental 
condition  of  the  testator.  The  testimony  of  the  testator's 
neighbors,  who  have  long  been  acquainted  with  him,  and 
have  had  frequent  intercourse  with  him,  and  whose  atten- 
tion has  been  particularly  called  to  the  testator,  who  have 
had  frequent  opportunities  of  observing  his  mind,  is  en- 
titled to  greater  weight  than  that  of  a  witness  of  equal 
sagacity,  whose  opportunities  were  more  limited.  The 
facts  upon  which  the  witnesses'  opinions  are  based  have 
been  given  you,  and  of  these  you  are  the  judges,  weighing 
the  facts  as  they  have  been  given,  in  order  to  determine  the 
condition  of  the  testator's  mind.  You  are  to  weigh  each 
particular  incident  and  fact  stated  to  you  by  the  witnesses, 
and  to  determine  from  the  whole  whether  or  not  the  tes- 
tator, at  the  time  of  the  execution  of  the  will,  was  or  was 
not  of  sound  mind.  You  are  to  take  into  consideration  the 
will  itself  and  its  provisions,  its  unjustness  or  hardships, 
if  any  exist,  to  determine  the  soundness  or  unsoundness  of 
the  testator's  mind." 

The  objection  urged  to  the  instruction  by  appellants' 
counsel  is,  that  the  court  thereby  invaded  the  province  of 
the  jury  by  charging,  as  a  matter  of  law,  that  the  testi- 
mony of  the  testator's  neighbors,  who  had  long  been  ac- 
quainted with  him,  etc.,  was  entitled  to  more  weight  than 
the  testimony  of  other  witnesses  of  equal  sagacity,  whose 
opportunities  had  been  more  limited. 

Considered  without  reference  to  any  other  charge  that 
may  have  been  given,  the  above  instruction,  in  our  judg- 
ment, is  open  to  the  objection  urged  against  it. 

It  may  be  true,  as  a  matter  of  fact,  that  the  testimony  of 
the  neighbors  of  the  testator,  who  had  the  advantages  and 
opportunities  named,  was  entitled  to  more  weight  than  the 
testimony  of  other  witnesses  of  equal  sagacity,  who  had  had 
less  opportunities  because  of  less  acquaintance  with  the 
testator.    But  that  was  a  fact  to  be  determined  by  the  jury 


472  Tkial  Practice  [Chap.  11 

as  a  fact,  and  not  by  the  court  as  a  question  of  law. 

The  instruction,  it  will  be  observed,  leaves  out  of  view 
the  essential  element  of  credibility.  The  neighbors  of  the 
testator  may  have  had  greater  opportunities  and  may  have 
been  of  equal  sagacity  with  other  witnesses  having  had  less 
opportunities,  and  yet  be  less  worthy  of  credence. 

Nor  does  it  follow  necessarily,  and  as  a  matter  of  law, 
that  the  testimony  of  one  of  two  witnesses,  of  equal 
sagacity,  is  entitled  to  greater  weight  simply  because  he 
may  have  had  more  acquaintance  with,  and  more  frequent 
opportunities  to  observe,  the  person  whose  sanity  is  in 
question.  The  witness  who  has  had  less  acquaintance,  and 
less  opportunities,  may  yet  be  the  most  reliable  witness,  be- 
cause of  some  special  training,  experience,  or  habit  of 
closely  observing  persons  whom  he  meets.  In  all  such  cases 
it  is  for  the  jury  to  determine  for  themselves  to  what  wit- 
ness they  will  give  the  most  credence.  They  have  a  right 
to  consider  the  fact  that  some  of  the  witnesses  may  have 
tiad  greater  opportunities  than  others.  The  court  may  in- 
struct them  that  they  have  such  right,  but  it  ought  not  to 
invade  their  province,  and  undertake  to  determine  for  them 
what  witness  is  the  most  reliable. 

The  latter  jjortion  of  the  instruction,  in  which  the  jury 
were  charged  that  they  should  weigh  the  facts  given  by  the 
witnesses  as  the  facts  upon  which  they  based  their  opinions, 
does  not  relieve  the  instruction  from  the  objection  urged 
by  appellants'  counsel.  In  the  first  place,  the  charge  di- 
recting the  jury  that  the  testimony  of  the  one  class  of  wit- 
nesses was  entitled  to  the  greater  weight  is  general,  and 
embraces  all  that  those  witnesses  testified  to;  and,  in  the 
second  place,  it  was  impossible  for  the  non-expert  wit- 
nesses, giving  their  opinions  as  to  the  insanity  of  the  tes- 
tator, to  state  to  the  jurj^  everything  upon  which  those 
opinions  were  based.  If  they  could  have  stated  everything 
upon  which  they  based  their  opinions,  the  opinions  would 
have  been  incompetent.  The  rule  which  allows  such  opin- 
ions, is  a  rule  of  necessity,  and  rests  upon  the  proposition 
that  there  may  be  something  about  the  looks,  deportment, 
etc.,  of  a  person  which  may  contribute  to  the  conclusion  that 
he  is  of  unsound  mind,  whicli  can  not  be  described  in  words 
1)V  tlio  witness.  Cartilage  T.  P.  Co.  v.  Andrews,  102  Ind. 
138  (52  Am.  R.  653). 


Sec.  5]  Instructing  the  Jury  473 

That  the  instruction  was  erroneous,  because  the  court 
thereby  invaded  the  province  of  the  jury,  by  directing  them 
that  the  testimony  of  one  class  of  witnesses  was  entitled  to 
more  weight  than  the  testimony  of  another  class,  is  well 
settled  by  our  cases.  Fulivider  v.  Ingels,  87  Ind.  414,  and 
cases  there  cited ;  Voss  v.  Prier,  71  Ind.  129 ;  Dodd  v.  Moore, 
91  Ind.  522,  and  cases  there  cited;  Works  v.  Stevens,  76  Ind. 
181;  Woolen  v.  Wliitacre,  91  Ind.  502,  and  cases  there  cited; 
Nelson  v.  Vorce,  55  Ind.  455;  Goodiuin  v.  State,  96  Ind.  550 
(569),  and  cases  there  cited;  Unruh  v.  State,  ex  rel.,  105 
Ind.  117,  and  cases  there  cited;  Morris  v.  State,  ex  rel.,  101 
Ind.  560,  and  cases  there  cited ;  Bird  v.  State,  107  Ind.  154, 
and  cases  there  cited ;  Vanvalkenherg  v.  Vanvalkenherg,  90 
Ind.  433. 

A  part  of  one  of  the  instructions  approved  in  the  case 
of  Bush  V.  Megee,  36  Ind.  69  (84),  is  similar  to  the  instruc- 
tion here  condemned,  but  the  probability  is  that  in  that 
case  the  attention  of  the  court  was  not  called  to  the  objec- 
tions urged  here. 

The  instruction  as  given  is  erroneous,  but  it  does  not 
follow  that  because  of  the  error  of  the  court  in  giving  it, 
the  judgment  must  be  reversed. 

It  appears  here  that  an  erroneous  instruction  was  given, 
but  it  is  not  shown  by  the  record  that  the  giving  of  it  was 
prejudicial  to  appellants.  The  evidence  is  not  in  the  record, 
nor  is  there  anything  in  the  record  showing,  or  tending  to 
show,  that  the  witnesses  spoken  of  in  the  charge  as  the 
neighbors  of  the  testator,  were  witnesses  below  in  behalf 
of  appellees.  For  aught  that  is  shown  by  the  record,  they 
may  have  been  called  by  appellants,  and  may  have  testi- 
fied in  their  behalf,  that  the  testator  was  a  person  of  sound 
mind,  and  hence  capable  of  making  the  will. 

Upon  the  whole  case,  we  think  that  the  judgment  ought 
to  be  affirmed. 

Judgment  affirmed,  with  costs. 


474  Trial  Practice.  [Chap.  11 

GUSTAFSON  V.  SEATTLE  TRACTION  COMPANY. 

Supreme  Court  of  Washington.    1902. 
28  Washington,  227. 

Eeavis,  C.  J. — Action  for  damages  for  personal  injuries. 
*  *  *  The  court,  on  the  submission  of  the  cause,  gave  the 
following  instruction: 

''There  has  been  some  expert  testimony  given  in  this 
case.  The  court  instructs  you  that  all  evidence  given  as  to 
the  opinion  of  a  witness  should  be  considered — of  the  opin- 
ion, mark  you,  of  a  witness — should  be  considered  and 
weighed  by  you  with  caution.  You  are  to  carefully  sep- 
arate, if  a  witness  is  introduced  as  an  expert,  what  he  tes- 
tifies to  as  a  fact,  and  what  he  testifies  as  to  his  opinion. 
As  to  facts  that  he  testifies  to  that  came  under  his  observa- 
tion, of  course,  his  testimony  is  to  be  weighed  the  same  as 
any  testimony  of  any  witness  who  is  credible,  or  whom  you 
find  to  be  credible,  who  testifies  to  what  he  saw,  to  what  he 
heard,  or  to  what  he  knew.  But  when  the  testimony  of  the 
witness  entered  the  domain  of  opinion,  then  his  testimony 
should  be  weighed  and  considered  by  you  with  caution. 
Wliile  the  testimony  of  experts  is  competent,  its  weight  and 
credibility  is  a  matter  entirely  for  your  consideration.  Such 
testimony  should  be  carefully  considered  with  reference  to 
the  supposed  or  proven  facts  upon  which  the  opinion  of 
the  expert  or  experts  are  founded." 

The  giving  of  this  instruction  is  assigned  as  error  preju- 
dicial to  the  defendant.  It  is  urged  that  the  instruction  ap- 
plied particularly  to  the  expert  witness  introduced  by  de- 
fendant, and  thus  singled  out  his  testimony,  and  directed 
that  it  be  weighed  with  caution.  Relative  to  the  proper 
instruction  in  the  submission  of  expert  testimony  to  the 
jury,  there  is  apparently  much  confusion,  when  the  reported 
cases  are  examined,  and  some  of  them  are  seeminglj'-  irre- 
concilable. Rogers,  Expert  Testimony  (2d  ed.),  s  206, 
states  tlie  different  theories: 

"  (1)  That  expert  testimony  is  to  be  considered  like  any 
other  testimony  in  the  case,  and  tried  by  the  same  tests. 
(2)  That  expert  testimony  is  to  be  received  with  caution. 


Sec.  5]  Insteucting  the  Jury  475 

(3)  That  expert  testimony  is  entitled  to  little  weight.     (4) 
That  expert  testimony  is  entitled  to  great  weight." 

From  an  examination  of  the  authorities,  it  would  seem 
that  some  confusion  arises  when  the  probative  value  of 
opinion  evidence  and  its  competency,  as  legal  propositions, 
are  under  discussion,  and  when  it  is  commingled  with  what 
should  be  the  proper  instructions  given  to  the  jury.  The 
great  weight  of  legal  opinion  seems  to  be  that  opinion  evi- 
dence is  less  reliable,  less  valuable,  than  evidence  of  facts. 
This  view  is  frequently  expressed  by  eminent  jurists. 
Judge  MiLLEK  in  Middlings  Purifier  Company  v.  Christian, 
4  Dill.  448;  also  Beaubien  v.  Cicotte,  12  Michigan,  459; 
Grigshy  v.  Clear  Lake  Water  Co.,  40  Cal.,  396;  Hayes  v. 
Wells,  34  Md.  512.  But  it  does  not  necessarily  follow  that 
such  expressions  of  the  value  of  expert  testimony,  although 
correct  and  the  general  view,  should  be  embodied  in  instruc- 
tions to  a  jury.  It  certainly  cannot  be  laid  down  as  a  gen- 
eral rule  to  be  given  to  a  jury  that  expert  testimony  is  of 
great  value  or  little  value.  In  fact,  it  may  sometimes  be  of 
great  value,  and  sometimes  valueless.  It  depends  on  a 
variety  of  circumstances  which  ought  to  be  considered, 
among  which  the  most  important  are  the  extent  of  the 
knowledge  of  the  expert,  his  opportunities  for  observation, 
and  his  skill  and  experience.  It  would  seem  then  that  the 
first  view  is  correct;  that  is,  that  such  testimony  is  to  be 
considered  and  weighed  by  the  same  tests  as  other  testi- 
mony, although  it  may  be  appropriate  for  the  court,  ac- 
cording to  the  nature  of  the  trial  and  the  evidence,  to  ex- 
iJain  something  of  the  nature  of  expert  testimony,  and  to 
define  the  difference  between  the  witness  who  testifies  to 
facts  and  one  who  testifies  to  his  opinion;  and  perhaps  all 
of  the  instruction  under  consideration  cannot  be  said  to  be 
objectionable.  But  the  court,  in  the  instruction,  applies  it 
principally  to  one  witness,  and,  after  an  injunction  to  care- 
fully weigh,  adds  that  this  must  be  done  with  caution,  and 
repeats  in  the  instruction  that  this  testimony  must  be  con- 
sidered •with  caution.  The  contention  of  counsel  for  appel- 
lant that  the  use  of  the  word  ''caution"  repeated  in  the 
connection  in  which  it  was  placed,  tended  to  single  out  and 
impair  the  weight  of  the  evidence  given  by  the  expert,  seems 
reasonable;  and,  under  the  distinction  between  the  func- 
tions of  the  court  and  those  of  the  jury,  fundamental  in  the 


476  Trial  Practice  [Chap.  11 

trial  of  law  cases,  the  competency  of  evidence  must  be  de- 
termined by  the  court,  and  its  weight  by  the  jury.  The 
word  "caution"  in  the  sense  used  here  and  in  other  in- 
structions of  similar  import,  has  been  deemed  in  other 
jurisdictions  sufficiently  prejudicial  to  reverse  the  case. 
Atchison,  etc.,  R.  R.  Co,  v.  Thul,  32  Kan.  255  (4  Pac.  352, 
49  Am.  Rep.  484) ;  PeoiJle  v.  Seaman,  107  Mich.  348  (65  N.' 
W.  203,  61  Am.  St.  Rep.  326) ;  Louisville,  etc.,  Ry.  Co.  v. 
Whitehead,  71  Miss.  451  (15  South.  890,  42  Am.  St.  Rep. 
472) ;  Weston  v.  Brown,  30  Neb.  609  (46  N.  W.  826) ;  State 
V.  Hundley,  46  Mo.  414;  Burney  v.  Torrey,  100  Ala.  157 
(14  South.  685,  46  Am.  St.  Rep.  33) ;  Eggers  v.  Eggers,  57 
Ind.  461;  Pannell  v.  Commonwealth,  86  Pa.  St.  260.  It  is 
true,  a  contrary  ruling  has  been  made  by  some  of  the 
courts.  See  United  States  v.  Pendergast,  32  Fed.  198; 
Whitaker  v.  Parker,  42  Iowa,  585;  People  v.  Perriman,  72 
Mich.  184  (40  N.  W,  425).  The  last  case  seems  to  have 
been  disapproved  in  People  v.  Seaman,  supra. 

For  error  in  this  instruction,  the  judgment  is  reversed, 
and  the  cause  remanded  for  a  new  trial. 

Hadley,  Fullerton,  White  and  Mount,  J.  J.,  concur. 


HIGGINS  V.  WREN. 

Supreme  Court  of  Minnesota.    1900, 
79  Minnesota,  462. 

Action  in  the  district  court  for  Wright  county  to  recover 
$200,  and  interest,  damages  for  the  conversion  of  a  note 
and  mortgage.  Lizzie  Stowell  intervened.  The  case  was 
tried  before  Giddings,  J.,  and  a  jury,  which  rendered  a  ver- 
dict in  favor  of  plaintiff  and  against  defendant  and  the 
intervener  for  $263.  From  an  order  denying  a  motion  for 
a  new  trial,  the  intervener  appealed.    Reversed. 

Collins,  J. 

On  the  trial  of  this  cause  there  was  testimony  received 
tending  to  impeach  one  of  the  defendants  who  had  testi- 
fied as  a  witness,  as  unworthy  of  credit,  on  the  ground  of 
general  bad  reputation  for  truth  and  veracity  in  the  neigh- 


Sec.  5]  Instructing  the  Jury  477 

borhood    wherein    he    resided.      The    court    subsequently 
charged  the  jury  as  follows: 

"If  the  jury  believe  from  the  evidence  in  this  case  that 
the  reputation  of  any  witness  in  this  case  for  truth  and 
veracity  in  the  neighborhood  where  they  reside  is  bad,  then 
the  jury  have  a  right  to  disregard  his  whole  testimony,  and 
treat  it  as  untrue."  At  this  point  defendant's  counsel 
called  special  attention  to  the  words  ''treat  it  as  untrue," 
and  thereupon  the  court  resumed  thus:  "That  is,  you 
have  a  right  to  treat  his  testimony  as  untrue;  that  is,  you 
liave  the  right — the  law  does  not  require  that  you  must, 
but  that  you  have  the  right — to  treat  it  as  untrue,  except 
where  it  is  corroborated  by  other  creditable  evidence,  or 
by  facts  and  circumstances  proved  on  the  trial." 

To  this  part  of  the  charge  counsel  reserved  an  exception. 
We  are  of  the  opinion  that  this  statement  of  the  law  was 
altogether  too  broad.  This  instruction  authorized  the  jury 
to  wholly  disregard  and  reject  all  of  the  testimony  given  by 
the  witness  if  satisfied  that  his  general  reputation  for  truth 
and  veracity  was  bad  in  the  neighborhood  in  which  he  re- 
sided, no  matter  how  truthful  all  or  a  part  of  such  testimony 
might  in  itself,  and  standing  alone,  appear  to  be.  It  is 
true  that  this  language  was  taken  bodily  from  a  well-known 
work  on  instructions  to  juries,  but  the  author  cites  no  au- 
thority in  support  of  it.  Nor  do  we  find  any.  We  are  of 
opinion  that  the  instruction  upon  this  point  approved  in 
State  V.  Miller,  53  Iowa,  209,  4  N.  W.  1083,  is  one  which 
will  be  better  understood  and  much  better  serve  the  pur- 
pose, as  follows: 

"Where  it  is  shown  that  the  reputation  for  truth  of  a 
witness  is  bad,  his  evidence  is  not  necessarily  destroyed, 
but  it  is  to  be  considered  under  all  the  circumstances  de- 
scribed in  the  evidence,  and  given  such  weight  as  the  jury 
believe  it  entitled  to,  and  to  be  disregarded  if  they  believe 
it  entitled  to  no  weight." 

The  successful  impeachment  of  a  witness  merely  affects 
his  credibility. 

Order  reversed. 


478  Trial  Practice  [Chap.  11 

FIFER  V.  RITTER. 

Supreme  Court  of  Indiana.    1902, 
159  Indiana,  8, 

Hadley,  J.  *  *  * 

********** 

Complaint  is  made  of  certain  instructions  given  to  the 
jury.  Number  two  informed  the  jury  that  they  were  the 
exclusive  judges  of  the  credibility  of  the  witnesses  and  of 
the  weight  of  their  testimony,  and  that  in  determining 
these  things  they  must  take  into  consideration  the  interest, 
the  appearance  upon  the  witness  stand,  the  intelligence,  the 
opportunities  for  learning  the  truth  concerning  the  things 
testified  about,  the  apparent  candor  and  correctness  of  the 
statements  as  compared  with  the  usual  and  ordinary  nature 
of  things.  The  particular  assault  upon  the  instruction  is 
directed  against  the  word  must,  as  being  an  encroachment 
upon  the  absolute  and  exclusive  right  of  the  jury.  We  can 
not  adopt  this  view.  Must  is  here  employed  in  the  sense  of 
duty,  and  the  term  is  equivalent  to  telling  the  jury  that  it 
was  their  duty  to  consider  the  matters  enumerated  in  esti- 
mating the  credibility  and  weight  of  the  testimony.  And 
it  clearly  was  their  duty.  It  was  unquestionably  their  duty 
to  decide  the  case  according  to  the  weight, — that  is  accord- 
ing to  the  convincing  force,  of  the  evidence,  honestly  ar- 
rived at,  and  just  as  plainly  their  duty  to  test  the  value  of 
the  testimony  of  each  witness  by  such  tests  as  common  ex- 
perience has  proved  to  be  reliable.  Will  any  one  say  that 
a  juror  may  discharge  his  duty  by  closing  his  eyes  to  the 
manner,  conduct,  and  appearance  of  witnesses  while  de- 
livering their  testimony,  and  giving  to  the  naked  words  of 
each  witness  full  and  equal  probative  force?  The  com- 
petency of  evidence  is  one  thing,  and  its  weight  another. 
Competency  is  purely  a  question  of  law  for  the  court  to 
declare.  Its  weight  is  a  question  for  the  jury  to  deter- 
mine. So  when  a  judge  tells  the  jury  that  it  is  proper  for 
them  to  consider  the  interest,  manner,  etc.,  of  the  witnesses, 
as  it  is  usually  phrased,  he  is  but  ruling  as  he  may  rightly 
rule  that  snch  evidence  is  competent;  and,  in  searching  for 
the  fact  established  by  the  evidence,  it  is  the  duty  of  the 


Sec.  5]  Insteucting  the  Jury  479 

jury  to  consider  all  competent  evidence  that  may  throw 
light  upon  the  truth,  and  it  is  no  less  essential  to  a  correct 
result,  and  quite  as  much  the  jury's  duty  to  consider  facts 
and  circumstances  properly  before  them,  which  go  to  dis- 
credit a  witness  or  to  strengthen  his  testimony,  as  it  is  to 
consider  the  statements  made  by  the  witnesses.  The  cases 
of  Woollen  v.  Whitacre,  91  Ind.  502,  Unruh  v.  State,  ex  rel., 
105  Ind.  117,  Duvall  v.  Kenton,  127  Ind.  178,  and  perhaps 
some  others,  so  far  as  they  may  seem  to  hold  to  a  different 
rule,  are  no  longer  authorities  upon  the  question  here  in- 
volved. That  which  seems  the  more  reasonable  view  ex- 
pressed above,  and  which  follows  Deal  v.  State,  140  Ind. 
354,  366,  Newport  v.  State,  140  Ind.  299,  302,  Smith  v.  State, 
142  Ind.  288,  and  Keesier  v.  State,  154  Ind.  242,  may  now 
be  said  to  be  the  approved  rule. 


We  find  no  error  in  the  record. 


Judgment  affirmed. 


(e)    Falsus  in  Una,  Falsus  in  Omnibus. 

CHICAGO   AND   ALTON    RAILROAD    COMPANY   V. 

KELLY. 

Supreme  Court  of  Illinois.    1904. 

210  Illinois,  449. 

Me.  Justice  Hand  delivered  the  opinion  of  the  court: 
This  was  an  action  on  the  case  brought  by  the  appellee 
to  recover  damages  for  the  death  of  his  intestate,  Joseph 
G.  Kelly,  occasioned,  as  is  alleged,  by  the  negligence  of  the 
appellant  in  failing  to  stop  its  train,  upon  which  Kelly 
was  a  passenger,  at  Braidwood  station  a  sufficient  length 
of  time  to  enable  Kelly  to  alight  therefrom  with  safety,  by 
means  whereof  said  Kelly,  while  in  the  exercise  of  due 
care  for  his  own  safety  and  while  attempting  to  leave  said 
train  at  said  station,  was  thrown  beneath  the  wheels  of  said 
train  and  run  over  and  killod.  The  case  was  tried  before 
the  court  and   a  jury,   and  the  jury  returned   a  verdict 


480  Trial  Peactice  [Chap.  11 

against  the  appellant  for  the  sum  of  $4000,  upon  which  ver- 
dict the  court,  after  overruling  a  motion  for  a  new  trial, 
rendered  judgment  in  favor  of  the  appellee,  which  judg- 
ment has  been  affirmed  by  the  Appellate  Court  for  the  Sec- 
ond District,  and  the  record  has  been  brought  to  this  court 
by  appeal  for  further  review. 

The  intestate  of  appellee,  on  the  evening  of  November 
15,  1900,  boarded  appellant's  train  at  Joliet  and  paid  his 
fare  to  Braidwood.  The  train  arrived  at  Braidwood  a  lit- 
tle after  eleven  o^clock  P.  M.,  when  Kelly  arose  from  his 
seat  in  the  smoking  car,  shook  hands  with  a  friend  with 
whom  he  had  been  talking,  and  started  for  the  rear  door  of 
the  car  to  get  off  the  train.  The  testimony  of  appellee 
tended  to  show  that  the  train  stopped  from  twelve  to  thirty 
seconds;  that  it  started  before  Kelly  had  time  to  get  off,  and 
that  in  attempting  to  get  off,  the  motion  of  the  train  caused 
him  to  lose  his  balance  and  he  was  thrown  down  and  run 
over  by  the  train  and  killed ;  while  the  testimony  of  the  ap- 
pellant tended  to  show  that  the  train  stopped  from  two  to 
three  minutes,  during  which  time  the  engine  took  water; 
that  the  deceased  had  ample  time  in  which  to  alight  from 
the  train  in  safety,  and  that  he  lost  his  life  by  reason  of  his 
own  negligence  in  attempting  to  leave  the  train  while  it 
was  in  motion  and  after  it  had  stopped  a  sufficient  length 
of  time  for  him  to  alight  therefrom  in  safety. 

There  was  upon  the  question  of  the  length  of  time  the 
train  stopped  at  the  Braidwood  station, — which  was  a  ma- 
terial question, — a  sharp  conflict  in  the  evidence,  and  in 
that  state  of  the  record  it  was  important  that  the  jury 
should  have  been  correctly  instructed  as  to  the  law  of  the 
case,  especially  as  to  the  rule  which  should  govern  them 
in  weighing  the  evidence  of  the  respective  witnesses.  On 
belialf  of  the  appellee  the  court  gave  to  the  jury  the  fol- 
lowing instruction,  the  giving  of  which  has  been  assigned 
as  error: 

"If  the  jury  believe,  from  the  evidence  in  this  case,  that 
any  witness  who  testified  in  the  case  has  willfully  sworn 
falsely  as  to  any  matter  or  tiling  material  to  the  issues  in 
this  case,  then  the  jury  are  at  liberty  to  disregard  the 
entire  testimony  of  such  witness,  except  in  so  far  as  it  may 
have  been  corroborated  by  other  credible  evidence  which 


Sec.  5]  Instructing  the  Jury  481 

they  do  believe,  or  by  facts  and  circumstances  proved  on 
the  trial." 

It  has  been  repeatedly  announced  as  the  law  of  this  State, 
that  the  jury  are  at  liberty  to  disregard  the  evidence  of  a 
witness  who  upon  the  trial  has  willfully  sworn  falsely  to 
a  material  fact,  except  in  so  far  as  such  witness  has  been 
corroborated  by  other  credible  evidence  or  by  facts  and  cir- 
cumstances proven  upon  the  trial.  {Crahtree  v.  Hagen- 
baugh,  25  111.  233 ;  Swan  v.  People,  98  id.  610 ;  Hoge  v.  Peo- 
ple, 117  id.  35;  Bevelot  v.  Lestrade,  153  id.  625.)  The  in- 
struction is  much  broader  than  the  rule  announced  in  the 
foregoing  cases,  as  it  informed  the  jury  they  were  at  lib- 
erty to  disregard  the  testimony  of  any  witness  who  had 
willfully  sworn  falsely  to  any  matter  or  thing  material  to 
the  issues,  except  in  so  far  as  such  witness  had  been  cor- 
roborated by  other  credible  evidence  ivhicJi  they  do  believe, 
the  effect  of  which  was  to  eliminate  from  the  consideration 
of  the  jury  the  evidence  of  any  witness,  if  any  such  there 
were,  who  had  willfully  sworn  falsely  upon  a  material  mat- 
ter, even  though  he  were  corroborated  by  other  credible 
evidence,  unless  the  jury  believed  such  other  credible  evi- 
dence to  be  true.  If  the  jury  may  disregard  the  testimony 
of  such  a  witness  unless  he  is  corroborated  by  other  credible 
evidence  which  they  believe,  then  the  jury  may  disregard 
the  evidence  of  such  a  witness  even  though  lie  be  corrobo- 
rated by  other  credible  evidence,  whicli  would  be  in  viola- 
tion of  the  rule  established  by  this  court.  It  is  not  the  duty 
of  the  jury  to  accept  as  true  the  testimony  of  a  witness  who 
has  testified  willfully  falsely  as  to  a  material  fact  simply 
because  he  is  corroborated  by  other  credible  evidence,  but 
when  such  witness  has  been  corroborated  by  other  credible 
evidence  it  is  the  duty  of  the  jury  to  consider  his  testimony 
in  connection  with  such  corroborating  evidence  and  the 
other  evidence  in  the  case,  and  to  give  to  it  such  weight 
as  they  may  be  of  opinion  it  is  entitled  to  receive  at  their 
hands.  The  error  in  the  instruction  under  consideration 
is  found  in  this :  that  it  permits  the  jury  to  refuse  to  con- 
sider the  testimony  of  a  witness  who  has  willfully  sworn 
falsely  with  reference  to  a  material  fact,  although  he  is 
corroborated  by  other  credible  evidence,  unless  the  jury  be- 
lieve the  other  credible  evidence  to  be  true.  Credible  evi- 
dence is  not  evidence  which  is  necessarily  true,  but  is  evi- 
T.  p.— 31 


482    '  Teial  Practice  [Chap.  11 

dence  worthy  of  belief, — that  is,  worthy  to  be  considered 
by  the  jury.  If  it  were  held  the  jury  were  not  to  consider 
the  evidence  of  a  witness  who  had  willfully  sworn  falsely 
to  a  material  fact  unless  he  was  corroborated  by  other 
credible  evidence,  and  then  only  when  they  believe  such 
credible  evidence  to  be  true,  it  would,  in  effect,  be  to  hold 
that  the  testimony  of  such  a  witness  is  only  to  be  consid- 
ered by  the  jury  after  they  have  become  satisfied  of  the 
truth  of  the  facts  testified  to  by  the  corroborating  wit- 
nesses. If  this  were  the  rule,  the  jury  would  have  reached 
a  conclusion  as  to  the  truth  of  the  matter  about  which  the 
witness  testified  before  they  would  be  required  to  consider 
the  evidence  of  the  witness,  which  would  make  the  con- 
sideration of  the  testimony  of  such  witness  unnecessary, 
even  though  his  testimony  were  corroborated  by  other 
credible  evidence. 

"VVe  are  of  the  opinion  the  instruction  is  in  conflict  with 
a  long  established  rule  of  evidence  in  force  in  this  State 
and  that  the  giving  thereof  constituted  reversible  error. 

The  judgment  of  the  Appellate  and  circuit  courts  will  be 
reversed  and  the  cause  remanded  to  the  circuit  court  for  a 
new  trial. 

Reversed  and  remanded. 


CAMERON  V.  WENTWORTH. 

Supreme  Court  of  Montana.    1899. 
23  Montana,  70. 

Mr.  Justice  Hunt  delivered  the  opinion  of  the  court. 

Plaintiff  brought  two  separate  actions  in  claim  and  de- 
livery to  recover  possession  of  two  certain  race  horses.  By 
consent,  the  two  suits  were  consolidated  for  the  purposes 
of  trial.  Plaintiff  recovered  a  verdict,  and  judgment  was 
entered  in  his  favor.  Defendant  Wentworth  moved  for  a 
new  trial,  which  motion  was  granted.  Plaintiff  appeals 
from  the  order  granting  a  new  trial. 

1.  One  of  the  grounds  upon  which  the  court  granted 
the  motion  for  a  new  trial  was  its  error  in  giving  the  fol- 
lowing instruction. 


Sec.  5]  Insteucting  the  Jury  483 

"It  is  the  duty  of  tlie  jury,  in  passing  upon  the  cred- 
ibility of  the  testimony  of  several  witnesses,  to  reconcile 
all  the  different  parts  of  the  testimony,  if  possible.  It  is 
only  in  cases  where  it  is  probable  that  a  witness  has  de- 
liberately and  intentionally  testified  falsely  as  to  some  ma- 
terial matter,  and  is  not  corroborated  by  other  evidence, 
that  the  jury  is  warranted  in  disregarding  his  entire  testi- 
mony. Although  a  witness  may  be  mistaken  as  to  some 
of  his  evidence,  it  does  not  follow,  as  a  matter  of  law,  that 
he  has  wilfully  told  an  untruth,  or  that  the  jury  would 
have  the  right  to  reject  his  entire  testimony." 

Plaintiff  contends  that  the  word  "probable"  was  used 
for  "palpable"  by  mistake,  and  that  the  error,  if  any  was 
not  calculated  to  mislead  the  jury.  This  argument  is 
premised  upon  the  assumption  that  if  "palpable"  had 
been  used,  the  instruction  would  have  been  a  correct  state- 
ment of  the  law, — an  assumption  which  respondent  seems 
to  have  regarded  as  well  taken,  and  which,  for  the  moment, 
we  will  not  disturb. 

It  is  undoubtedly  the  rule  that,  where  a  witness  has 
willfully  sworn  falsely  as  to  any  material  matter  upon  the 
trial,  the  jury  is  at  liberty  to  discard  his  entire  testimony, 
except  in  so  far  as  it  has  been  corroborated  by  other  cred- 
ible evidence ;  but  we  do  not  understand  the  right  to  so  dis- 
card testimony  follows,  if  it  be  merely  probable  that  the 
witness  has  willfully  sworn  falsely.  In  other  words,  there 
must  be  a  belief  in  the  minds  of  the  jury  that  a  witness  has 
actually  and  knowingly  testified  falsely  as  to  some  material 
matter  before  they  are  at  liberty  to  eliminate  his  testimony 
entirely;  but  a  belief  that  an  actual  fact  exists  requires 
a  considerably  stronger  support  than  does  a  belief  that  it 
probably  exists.  If  a  witness  has  palpably  sworn  falsely, 
it  is  almost  self-evident  that  he  has  done  so.  The  range 
of  probability  is  passed  over,  and  it  has  become  more  than 
likely  that  he  has  testified  falsely,  knowingly  and  intention- 
ally. Therefore,  where  perjury  is  palpable,  there  need 
be  no  extended  discussion  upon  which  to  base  a  finding  that 
the  witness  has  willfully  testified  falsely, — the  jury  may  at 
once  act  upon  the  fact  so  obviously  or  palpably  demon- 
strated. But  to  say  that  a  jury  can  discard  testimony,  if 
they  conclude  that  a  witness  has  probably  perjured  him- 
self, is  to  authorize  deliberation,  not  upon  the  question  of 


484  Trial  Practice  [Chap.  11 

whether  he  has  iviUfidly  sworn  falsely,  but  upon  whether  it 
is  likely  he  has  done  so.  So,  although  the  jury  might  not 
say  they  believed  the  witness  did  willfully  testify  falsely, 
yet,  if  they  could  say  that  it  was  probable  or  likely  that 
he  did  so  testify,  nevertheless  the  right  to  discard  the  en- 
tire testimony  would  exist.  Reasoning  along  this  line 
carries  us  to  where  it  is  easily  seen  that  a  jury  would  di- 
verge in  their  consideration  of  evidence,  and  too  often  over- 
look the  necessity  for  belief  in  existing  facts,  amid  meta- 
physical gropings  for  probabilities,  to  enable  them  to 
ignore  testimony.  They  should  not  be  allowed  to  do  this; 
for  if,  in  their  judgment,  probability  of  perjury  alone  exists, 
they  cannot  legally  give  that  effect  to  evidence  which  they 
may,  if,  in  their  judgment,  the  fact  of  perjury  exists  as 
demonstrable  beyond  a  mere  probability  that  it  exists. 
Therefore,  to  expressly  authorize  a  jury  to  act,  in  discard- 
ing testimony,  on  probability,  is  wrong.  It  becomes  an  au- 
thorization to  them  to  judge  of  the  effect  of  evidence  arbi- 
trarih%  and  weakens,  if  it  does  not  break  down,  the  force 
of  that  other  and  salutary  rule  which  always  confines  the 
power  of  a  jury  to  form  a  judgment  upon  evidence  within 
the  exercise  of  legal  discretion,  and  in  subordination  to  the 
rules  of  evidence. 

But  it  is  our  opinion  that  the  premise  which  would  regard 
the  instruction  as  sound,  if  it  had  read  ''palpable"  instead 
of  "probable,"  is  false  and  unsound,  and  that  the  instruc- 
tion would  still  be  inherently  bad  with  the  word  "palpable" 
imported  into  it,  for  the  reason  that  it  circumscribes  the 
power  of  the  jury  in  giving  effect  to  evidence  by  limiting 
their  right  to  discard  the  testimony  of  a  witness  to  those 
instances  only  where  it  is  palpable  the  witness  has  willfully 
sworn  falsely,  and  is  not  corroborated  by  other  evidence. 
No  such  principle  can  find  favor  where  the  jury  are  the 
exclusive  judges  of  the  credibility  of  a  witness,  and  where 
they  are  authorized  to  ignore  his  testimony,  if  willfully 
false,  and  not  corroborated.  It  may  be  that  a  jury,  after 
full  consideration  of  all  a  witness  has  testified  to,  will  be- 
lieve he  has  perjured  himself,  yet  it  may  not  have  been 
readily  observed  at  all  on  the  trial  that  the  witness  will- 
fully swore  falsely.  Now,  under  such  conditions,  the  jury 
have  as  clear  a  right  to  discard  his  testimony  as  they 
would  Imvo  had  if  it  had  been  palpable  that  the  witness 
was  willfully  falsifying;  for  the  test  necessarily  is:  has  the 


Sec.  5]  Instructing  the  Jury  485 

witness  willfully  sworn  falsely  as  to  any  material  matter? 
and  this  is  to  be  ascertained  by  the  jury  as  a  fact,  deducible 
from  other  facts  or  circumstances  connected  with  the  trial 
and  before  them  for  consideration.  But,  in  sifting  and 
weighing  the  evidence,  if  the  fact  is  found,  whether  it  has 
manifested  itself  palpably,  or  whether  it  has  been  arrived 
at  by  processes  of  reasoning  uj^on  other  facts  or  circum- 
stances, is  absolutely  immaterial  in  its  effect  upon  the 
power  of  the  jury  to  discard  the  testimony. 

We  therefore  disapprove  of  the  instruction  from  the  two 
standpoints  discussed.  It  is  essentially  erroneous,  and  the 
text  of  Mr.  Sackett  (page  35),  which  gives  it  as  the  law, 
finds  no  support  in  any  lang-uage  used  by  the  court  in  Gott- 
lieb V.  Hart  man,  3  Colo.  53,  which  is  cited  as  authority  for 
its  doctrine.  It  follows  that  the  action  of  the  court  below 
in  granting  a  new  trial  must  be  affirmed. 

Another  ground  for  granting  a  new  trial  was  the  refusal 
of  the  court  to  give  the  following  instruction  requested  by 
defendant:  "You  are  further  instructed  that  a  witness 
who  testifies  falsely  in  one  part  of  his  testimony  is  to  be 
distrusted  in  other  parts  of  his  testimony."  The  instruc- 
tion offered  is  substantially  the  language  of  Subdi\dsion  3 
of  Section  3390  of  the  Code  of  Civil  Procedure,  which  pro- 
vides that  the  jury  are  to  be  instructed  on  all  proper  occa- 
sions "that  a  witness  false  in  one  part  of  his  testimony  is 
to  be  distrusted  in  others."  Presumably  the  case  was  one 
where  the  court  should  have  given  the  instruction  re- 
quested, or  the  substance  of  it,  by  way  of  caution  to  the 
jury  upon  effect  of  evidence.  And  we  can  readily  under- 
stand the  aid  furnished  to  a  jury  by  declaring  to  them  the 
principle  meant  to  be  enunciated  by  the  statute,  that  a  wit- 
ness who  has  willfully  testified  falsely  as  to  any  material 
matter  must  be  distrusted  as  to  other  parts  of  his  testi- 
mony. The  statute  is  not  applicable,  however,  to  uninten- 
tional errors,  or  evidence  given  upon  immaterial  matters, 
and  without  intent  to  deceive.  Its  sense  is  to  require  the 
jury  to  distrust  only  a  witness  who  willfully  swears  falsely 
as  to  material  matters ;  and  we  are  of  opinion  that  it  ought 
always  to  be  given  with  the  words  "willfully"  and  "ma- 
terial" expressed  as  qualifications  of  the  rule  it  declares. 

The  statute  (Sec.  3390,  supra)  came  to  us  from  Cali- 
fornia (Code  Civ.  Proc.  Cal.  Sec.  2061),  where  it  has  been 
interpreted  as  applicable  only  to  a  witness  who  is  willfully 


486  Trial  Peactice  [Chaij.  11 

false  in  a  material  manner  [People  v.  Hicks,  53  Cal  351; 
People  V.  Soto,  59  Cal.  367) ;  and,  while  it  has  been  held  in 
that  state  that  the  word  "false"  is  not  the  equivalent  of 
"mistake",  and  that  the  word  "willfully"  does  not  change 
the  effect  of  the  instruction  as  offered  [People  v.  Sprague, 
53  Cal.  491;  People  v.  Righetti,  66  Cal.  184,  4  Pac.  1063, 
1185;  White  v.  Disher,  67  Cal.  402,  7  Pac.  826),  nevertheless 
we  are  satisfied  that  the  meaning  should  be  made  perfectly 
clear  by  avoiding  the  opportunity  for  misunderstanding 
that  may  reasonably  exist  by  adopting  the  construction  of 
the  supreme  court  of  California  announced  in  the  cases 
heretofore  cited  and  followed  in  State  v.  Kyle,  14  Wash. 
550,  45  Pac.  147,  holding  that  the  qualifying  words  need 
not  be  expressed. 

As  a  statute  affecting  the  province  of  the  jury  in  weigh- 
ing evidence,  it  requires  them  to  view  with  distrust  the  tes- 
timony of  a  witness  who  willfully  swears  falsely  as  to  a 
material  matter.  They  must  distrust  such  a  witness,  and, 
under  their  general  power  of  passing  upon  the  credibility 
to  be  attached  to  each  witness,  they  7nag  discard  such  tes- 
timony entirely,  except  in  so  far  as  it  is  corroborated  by 
other  credible  evidence.  [People  v.  Durrant,  116  Cal.  179, 
48  Pac.  75.) 


The  order  granting  a  new  trial  must  be  affirmed. 

Affir7ned. 


WARD  V.  BROWN. 

Supreme  Court  of  Appeals  of  West  Virginia.    1903. 
53  West  Virginia,  227. 

POFFENBARGER,  JudgC  : 

*  *  *  The  court,  on  its  own  motion,  gave  the  following: 
"The  court  instructs  the  jury,  that  they  are  the  judges  of 
the  evidence  and  the  weight  to  be  given  thereto  and  of  the 
credibility  of  witnesses  testifying  in  this  case;  that  if  they 
believe  that  any  witness  has  testified  falsely  in  this  case  as 


Sec.  5]  Instructing  the  Juby  487 

to  any  matters  in  issue,  that  then  the  jury  have  the  right 
to  disregard  such  false  testimony  or  give  to  it  and  all  the 
evidence  of  such  witness  such  weight  as  the  jury  may  in 
their  opinion  believe  it  was  entitled  to."  The  action  of  the 
court  in  giving  this  instruction  is  also  complained  of,  it 
being  insisted  that  the  jury  should  not  have  been  told  that 
they  might  give  to  the  false  testimony  such  weight  as  they 
might  think  it  entitled  to.  Instructions  of  this  class  have 
been  carefully  considered  in  State  v.  Thompson,  21  W.  Va. 
741,  in  which  the  following  was  approved  as  a  correct 
enunciation  of  the  law:  *'If  the  jury  believe  from  the  evi- 
dence that  any  witness  who  has  testified  in  this  case  has 
knowingly  and  willfully  testified  falsely  to  any  material 
fact  in  the  case,  they  may  disregard  the  whole  testimony 
of  such  witness,  or  they  may  give  such  weight  to  the  evi- 
dence of  such  witness  on  other  points  as  they  may  think  it 
entitled  to.  The  jury  are  the  exclusive  judges  of  the  weight 
of  the  testimony."  In  Thompson  on  Trials,  section  2,425, 
this  instruction  is  approved  as  a  good  model.  It  is  diffi- 
cult to  see,  however,  how  the  jury  could  believe  testimony 
which  they  had  found  to  be  false  could  be  entitled  to  any 
weight,  and  the  court  told  them  they  could  give  only  such 
weight  as  they  might  believe  it  entitled  to.  They  were  not 
directed  to  give  it  any  weight.  The  instruction  left  it  wholly 
dependent  upon  whether  they  believed  it  entitled  to  any 
weight.  But  the  instruction  is  bad  in  this,  that  it  does  not 
inform  the  jury  that  they  may  reject  the  whole  of  the  tes- 
timony of  the  witness  who  willfully  testifies  falsely  as  to 

material  matters. 

********** 

For  the  errors  noted,  the  decree  entered  in  this  cause  on 
the  29th  day  of  April,  1899,  by  the  circuit  court  of  Kanawha 
County,  must  be  reversed,  the  verdict  of  the  jury  set  aside 
and  a  new  trial  of  the  issue  awarded. 

Reversed,  remanded. 


CHAPTER  XIL 
ARGUMENT  AND  CONDUCT  OF  COUNSEL. 

BALDWIN'S  APPEAL  FROM  PEOBATE. 

Supreme  Court  of  Errors  of  Connecticut.    1878. 

44  Connecticut,  37. 

Appeal  from  a  decree  of  a  probate  court  disallowing  the 
will  of  Sarah  Baldwin ;  taken  to  the  Superior  Court  in  New 
Haven  County.  The  appellant  was  a  devisee  and  legatee 
under  the  will.  The  case  was  tried  to  the  jury,  on  the 
issue  of  the  soundness  or  unsoundness  of  the  mind  of  the 
testratrix,  before  Sanford,  J. 

After  the  evidence  on  both  sides  had  been  introduced, 
one  of  the  counsel  for  the  appellant,  while  making  the 
opening  argument,  proposed  to  read  to  the  jury  from  the 
decisions  of  courts  in  this  country  and  in  England,  where 
wills  had  been  sustained  notwithstanding  the  objections 
which  had  been  made  to  them  founded  upon  the  alleged  tes- 
tamentary incapacity  of  their  makers,  for  the  purpose  of 
showing  that  the  facts  set  forth  in  such  cases  were  not  in- 
consistent with  the  legal  signification  of  soundness  of  mind, 
as  applied  to  the  making  of  wills.  The  counsel  for  the  ap- 
pellee objected  to  such  reading,  on  the  ground  that  it  would 
divert  the  attention  of  the  jury  from  the  case  on  trial,  and 
tliat  the  jury  had  no  right  to  be  influenced  by  what  other 
courts  or  juries  had  done  or  decided  in  any  other  case.  The 
court  overruled  the  objection,  and  allowed  the  cases  to  be 
read. 

The  jury  having  returned  a  verdict  for  the  appellant, 
sustaining  the  will,  the  appellee  moved  for  a  new  trial  for 
error  in  the  above  ruling  of  the  court.  Other  questions 
were  made,  which  it  is  not  necessary  to  state,  as  they  were 
not  considered  by  the  court. 

Caepenter,  J.     On  one  point  in  this  case  we  feel  con- 

488 


Chap.  12]  Argument  and  Conduct  of  Counsel  489 

strained  to  grant  a  new  trial.  Some  of  the  other  questions 
discussed  are  not  free  from  doubt ;  but  in  respect  to  them 
we  express  no  opinion,  as  they  will  not  necessarily  arise 
upon  another  trial. 

The  counsel  for  the  appellant  were  permitted,  against 
the  objection  of  the  appellee,  to  read  to  the  jury,  from 
books,  'Cases  decided  in  other  states  and  in  England,  ''for 
the  purpose,"  as  it  is  stated  in  the  motion,  '*of  showing 
that  the  facts  as  set  forth  in  such  cases  were  not  incon- 
sistent with  the  legal  signification  of  'soundness  of  mind,' 
as  applied  to  the  making  of  wills." 

The  duties  of  the  court  and  of  the  jury  in  the  trial  of 
civil  causes  are  distinct  and  clearly  defined.  It  is  the  duty 
of  the  court  to  declare  the  law  to  the  jury ;  and  that  carries 
with  it  a  corresponding  obligation  on  the  part  of  the  jury 
to  receive  the  law  only  from  the  court.  They  have  no  right 
to  receive  the  law  from  books,  nor  from  counsel,  nor  are 
they  permitted  to  act  upon  their  own  notions  of  law,  but 
the  law  as  laid  down  by  the  court  is  to  be  the  law  of  the 
case  for  them. 

It  is  also  the  duty  of  the  court  to  decide  what  evidence 
may  and  what  may  not  go  to  the  jury ;  and  the  law  declares 
that  all  evidence  submitted  to  the  jury  shall  be  under  the 
sanction  of  an  oath.  It  is  the  duty  of  the  jury  therefore  to 
hear  and  consider  onl}^  such  evidence  as  the  court  permits 
to  be  given,  and  such  only  as  is  under  oath. 

Whether  the  matter  read  to  the  jury  be  regarded  as  mat- 
ter of  law,  as  a  statement  of  facts,  or  as  a  mixture  of  law 
and  fact,  it  is  equally  objectionable.  If  as  matter  of  law, 
then  the  jury  were  re^ceiving  the  law,  which  was  to  guide 
their  deliberations,  from  an  unauthorized  and  dangerous 
source.  If  as  matter  of  fact,  then  the  jury  were  listening 
to  evidence  which  was  not  only  irrelevant,  and  could  have 
no  legitimate  bearing  upon  the  question  before  them,  but 
it  was  admitted  after  the  evidence  was  closed  and  the  argu- 
ment commenced,  and  without  any  legal  sanction  whatever, 
not  even  being  subjected  to  the  test  of  a  cross-examination. 
If  regarded  as  a  mixture  of  law  and  fa^ct,  then  all  the  ob- 
jections which  may  be  urged  against  it  when  viewed  as  law 
or  fact,  apply  in  full  force.  In  whatever  aspect  viewed 
its  tendency  was  bad,  diverting  the  minds  of  the  jury  from 


490  Trial  Practice  [Chap.  12 

tile  real  question  they  were  to  try,  and  the  legitimate  and 
proper  evidence  in  the  case. 

This  is  not  the  ordinary  case  of  reading  an  authority 
to  the  court  upon  a  question  of  law  in  the  presence  of  the 
jury,  as  the  counsel  for  the  appellant  seems  to  intimate. 
The  motion  shows  that  it  was  proposed  to  read  the  cases 
to  the  jury.  The  reading  was  objected  to  *'on  the  ground 
that  it  would  divert  the  attention  of  the  jury  from  the  case 
on  trial,  and  that  the  jury  had  no  right  to  be  influenced 
by  what  other  courts  or  juries  had  done  or  decided  in  any 
other  case."  The  court,  in  overruling  this  objection,  must 
have  caused  the  jury  to  understand  that  it  was  proper  for 
them  to  consider  the  facts  stated  in  those  cases,  and  the 
action  of  the  courts  and  juries  thereon,  in  connection  with 
the  evidence  in  this  case  in  making  up  their  verdict,  and 
they  may  have  been,  and  probably  were,  influenced  thereby. 
Whatever  effect  they  had,  whether  much  or  little,  was  im- 
proper and  tended  to  prejudice  the  appellee. 

The  view  we  take  of  this  question  is  in  harmony  with 
the  law  as  laid  down  elsewhere.  Ashworth  v.  Kittridge,  12 
Cush.  193;  Commo'invealth  v.  Wilson,  3  Gray,  337;  Wash- 
hum  V.  Cuddihy,  8  Gray,  430;  Phoenix  Ins.  Co.  v.  Allen,  11 
Mich.  501;  People  v.  Anderson,  44  Cal.  65;  Carter  v.  The 
State,  2  Carter's  Ind.  R.,  617. 

We  advise  a  new  trial. 

In  this  opinion  the  other  judges  concurred. 


LOUISVILLE  &  NASHVILLE  RAILROAD  COMPANY 

V.REAUME. 

Court  of  Appeals  of  Kentucky.    1908. 

32  Kentucky  Law  Reporter,  946. 

Opinion  of  the  court  by  Judge  Carroll,  reversing. 

Appellee,  who  was  a  passenger  on  one  of  appellant's 
trains,  was  injured  by  the  derailment  of  the  train  at  a 
point  near  Zion  station,  on  the  line  of  its  railroad  between 
Cincinnati  and  Louisville.  In  an  action  brought  by  her  to 
recover  damages  for  injuries  received,  the  jury  returned 
a  verdict  in  her  favor  for  ten  thousand  dollars. 


Chap.  12]  Argument  and  Conduct  of  Counsel  491 

*  *  *  Much  is  also  said  about  the  misconduct  of  appel- 
lee's counsel  in  continuing  to  ask  questions  that  the  trial 
court  had  ruled  incompetent.  It  is  improper  for  counsel 
to  persist  in  asking  questions  that  the  court  has  ruled  to 
be  incompetent,  the  purpose  being  to  impress  the  jury  with 
the  importance  of  the  facts  that  have  been  excluded  from 
their  consideration.  When  the  court  has  sustained  an  ob- 
jection to  a  question,  it  is  the  privilege  of  counsel  to  make 
an  avowal  as  to  what  the  witness  would  say  if  permitted  to 
answer,  and  this  avowal  he  has  the  right  to  have  put  in 
record  for  the  purpose  of  an  appeal.  But  the  question  ex- 
cluded should  not  be  again  asked  the  same  witness  in  like 
or  a  different  form,  unless  it  be  that  the  objection  was  made 
to  the  question  because  of  the  form  in  which  it  was  put.  If 
this  is  the  ground  upon  which  the  objection  is  based,  coun- 
sel should,  of  course,  be  permitted  to  ask  the  question  in 
proper  form,  so  that  the  objection  may  go  to  the  competency 
or  relevancy  of  it.  As  an  illustration  of  the  manner  in 
which  counsel  for  appellee  sought  to  get  before  the  jury 
incompetent  evidence,  he  rei:)eatedly  asked,  in  different 
forms  and  ways — if  the  railroad  company  had  not  settled 
or  attempted  to  settle  with  other  persons  injured  in  the 
same  wreck;  and  also  concerning  the  condition  of  the 
health  of  appellee's  father  and  other  members  of  her  fam- 
ily. A  party  will  not  be  permitted,  by  indirect  means,  to 
acquaint  the  jury  with  facts  which  he  is  not  allowed  to 
bring  to  their  notice  by  direct  evidence.  If  this  practice 
was  permitted  to  go  Avithout  criticism,  or  could  be  indulged 
in,  without  suffering  the  penalty  of  reversal,  the  trial  judge, 
after  exhausting  all  other  means,  could  not,  unless  he  felt 
inclined  to  resort  to  contempt  proceedings,  prevent  the 
mind  of  the  jury  from  being  prejudiced  by  the  efforts  of 
counsel  to  put  before  them,  in  an  indirect  way,  evidence  that 
was  incompetent.  Skilled  counsel  in  resorting  to  practices 
of  this  character,  have  in  view  the  effect  that  it  will  pro- 
duce on  the  jury  and  their  expectations  are  too  frequently 
well  founded,  as  it  is  difficult  for  a  jury  to  escape  from 
being  impressed  in  some  manner  by  the  insistence  with 
whicli  damaging,  but  incompetent,  evidence  is  offered  and 
the  objections  of  adverse  counsel  to  it  sustained.  If  a 
practice  of  this  kind  is  persistently  indulged  in  by  counsel, 
although  the  trial  judge  repeatedly  tried  to  prevent  it,  it 


492  Trial  Peactice  [Chap.  12 

would  as  surely  be  grounds  for  reversal  as  any  other  sub- 
stantial error  that  a  party  might  commit  in  the  trial  of  a 
■case.  The  orderly  conduct  of  the  trial,  the  professional 
and  personal  deportment  of  counsel,  the  examination  of  wit- 
nesses, and  all  other  matters  connected  with  the  proceed- 
ings are  under  the  control  of  the  trial  judge,  and  he  has 
ample  power  and  authority  to  enforce  his  rulings  and  to 
prevent  counsel  from  disobeying  them.  But,  the  trial  judge 
is  often  reluctant  to  resort  to  extreme  measures  in  dealing 
with  attorneys  engaged  in  the  trial  of  a  case,  and  is  content 
to  sustain  objections  that  are  made,  and  let  the  disapproved 
conduct  pass  with  this,  or  a  slight  reprimand,  that  at  times 
is  unheeded,  but  this  court  will  not  permit  the  non-action 
of  the  trial  judge,  or  rather  his  failure  to  take  such  action 
as  may  be  necessary  to  effectually  restrain  counsel  to  pre- 
judice the  rights  of  one  of  the  parties,  but  will  take  such 
action  as  to  it,  under  all  the  circumstances,  seems  right 
and  i:>roper.  The  distinguished  counsel  who  tried  the  case 
for  appellee,  has  since  died.  He  was  an  able,  resourceful 
and  zealous  lawyer.  His  experience  on  the  bench,  where  he 
presided  with  honor  and  dignity,  well  qualified  him  to  un- 
derstand  and  appreciate  when  counsel,  in  the  trial  of  a  case, 
were  overstepping  the  bounds  of  propriety,  and  he  must  have 
known,  as  did  the  excellent  judge  before  whom  this  case  was 
tried,  that  the  evidence  he  was  trying  to  get  before  the  jury 
was  wholly  irrelevant  and  incompetent.  Except  for  the  fact 
that  this  case,  on  a  retrial,  will  be  conducted  by  other  coun- 
sel, and  our  failure  to  call  attention  to  the  misconduct  of 
former  counsel  might  leave  the  impression  that  it  was  not 
open  to  criticism,  we  would  not,  under  the  circumstances, 
direct  attention  to  it. 


Cliap.  12]   Akgument  and  Conduct  of  Counsel  493 

WAGONER  V.  HAZLE  TOWNSHIP. 

Supreme  Court  of  Pennsylvania.    1906. 

215  Pennsylvania  State,  219. 

Opinion  by  Mr.  Justice  Mestrezat,  May  7,  1906. 

The  proximate  cause  of  Mrs.  Wagoner's  injuries  was 
the  hole  or  opening  in  the  bridge,  and  if  the  jury  found,  as 
they  did,  that  the  hole  was  caused  by  the  negligence  of  the 
defendant  township,  its  liability  necessarily  followed. 

The  question  of  Mrs.  Wagoner's  contributory  negligence 
was  for  the  jury.  The  facts  were  not  undisjrated.  The 
plaintiffs  claim  that  after  the  wheel  of  the  wagon  had  gone 
into  the  opening  in  the  bridge  she  attempted  to  alight 
from  the  wagon,  and  was  in  the  act  of  doing  so  at  the 
time  it  was  struck  by  the  car  of  the  Lehigh  Traction  Com- 
pany, and  that  her  conduct  in  no  way  contributed  to  her 
injuries.  What  she  did  on  that  occasion,  and  whether  she 
acted  with  the  prudence  required  of  her,  were  for  the  jury. 

Prior  to  the  present  action  the  plaintiffs  brought  suit 
against  the  Lehigh  Traction  Company  to  recover  damages 
for  the  same  injuries,  and  obtained  a  verdict  of  $6,000.  The 
case,  on  appeal,  was  heard  by  this  court  last  year,  and  the 
judgment  was  reversed  and  a  new  trial  was  awarded.  On 
the  trial  of  the  present  action  the  counsel  for  the  plaintiff 
in  the  presence  of  the  jury  and  where  they  could  distinctly 
hear  it,  made  the  following  offer:  ''We  now  offer  in  evi- 
dence the  record  in  that  case,  for  the  purpose  of  show- 
ing that  the  jury  gave  the  plaintiff  a  verdict  of  six  thous- 
and dollars,  and  that  the  case  was  appealed  to  the  Supreme 
Court  and  that  the  Supreme  Court  reversed  the  judgment 
of  the  court  below,  practically  saying  that  it  was  not  re- 
sponsible, but  that  the  township  was  bound  to  keep  its  own 
road  in  repair."  Thereupon  the  defendant's  counsel  said: 
"We  object  and  move  that  a  juror  be  withdrawn,  because 
of  the  statement  made  by  the  attorney  for  the  plaintiff,  in 
full  voice  before  the  jury,  as  to  the  amount  of  the  other 
verdict."  The  court  declined  to  withdraw  a  juror  and  the 
defendant  excepted  to  the  ruling.  We  think  the  court  com- 
mitted error  ft)r  which  the  judgment  must  be  reversed. 


494  Trial  Peactice  [Chap.  12 

The  offer  was  clearly  incompetent,  and  the  only  purpose 
it  could  serve,  or  effect  it  could  have,  would  be  to  place 
before  the  jury  the  amount  of  the  large  verdict  in  the  Le- 
high Traction  Company  case.  The  counsel  should  not  have 
made  the  otfer,  and  after  he  had  made  it,  it  was  the  duty 
of  the  court  to  protect  the  defendant  against  its  effect.  The 
purpose  of  the  offer  was  obvious,  and  its  effect  would  be 
equally  apparent.  Such  conduct  on  the  part  of  counsel  is 
different  from  an  unintentional  or  inadvertent  remark  to 
a  jury  which  does  the  opposite  party  no  injury.  When 
such  remarks  are  made  they  may  or  may  not  have  an  in- 
fluence upon  the  jury,  but  there  can  be  no  question  about 
the  effect  upon  the  tribunal  of  an  offer  to  show  what  a 
former  jury,  dealing  with  the  same  facts,  had  determined 
as  to  the  amount  of  damages  due  the  plaintiffs  for  the 
injuries  which  they  sustained.  It  was  a  criterion  for  the 
jury  in  considering  the  case  which  they  evidently  would 
accept,  and  which  no  language  of  the  trial  judge  could 
drive  from  their  minds.  The  offer  got  before  the  jury  what 
was  clearly  incompetent  and  what  manifestly  would,  to 
some  extent  at  least,  control  their  verdict.  The  only  way  to 
remedy  the  wrong  was  to  w^ithdraw  a  juror  and  compel  the 
plaintiffs  to  submit  the  cause  to  another  jury,  uninfluenced 
by  such  wholly  irrelevant  and  incompetent  matter. 

When  an  attorney  in  the  trial  of  a  cause  willfully  and  in- 
tentionally makes  an  offer  of  wholly  irrelevant  and  in- 
competent evidence,  or  makes  improper  statements  as  to 
the  facts  in  his  address  to  the  jury,  clearly  unsupported  by 
any  evidence,  which  are  prejudicial  and  harmful  to  the 
opposite  party,  it  is  the  plain  duty  of  the  trial  judge,  of 
his  own  motion,  to  act  promptly  and  effectively  by  repri- 
manding counsel  and  withdrawing  a  juror  and  continuing 
the  cause  at  the  costs  of  the  -client.  In  no  other  way  can 
justice  be  administered  and  the  rights  of  the  injured  party 
be  protected.  The  imposition  of  the  costs  will  remind  the 
client  that  he  has  an  attorney  unfaithful  to  him  as  well 
as  to  the  court.  The  obligation  of  fidelity  to  the  court 
wliich  an  attorney  assumes  on  his  admission  to  the  bar 
is  ever  thereafter  with  him,  and  when  he  attempts  to  de- 
foat  the  justice  of  a  cause  by  interjecting  into  the  trial 
wholly  foreign  and  irrelevant  matter  for  the  manifest  pur- 


Chap.  12]  Argument  and  Conduct  of  Counsel  495 

pose  of  misleading  the  jury,  he  fails  to  observe  the  duty 
required  of  him  as  an  attorney  and  his  conduct  should  re- 
ceive the  condemnation  of  the  court.  This  condemnation 
can  and  should  be  made  effective. 

The  ninth  assignment  of  error  is  sustained  and  the  judg- 
ment of  the  court  below  is  reversed  with  a  venire  facias  de 
novo. 


M'CARTHY  V.  SPRING  VALLEY  COAL  COMPANY. 

Supreme  Court  of  Illinois.    1908. 

232  Illinois,  473. 

This  is  an  action  on  the  case  in  the  circuit  court  of  Bureau 
county  to  recover  damages  for  personal  injury  sustained  in 
the  appellant's  coal  mine.  *  *  * 

Me.  Justice  Dunn  delivered  the  opinion  of  the  court: 

Complaint  is  made  of  the  conduct  of  counsel  for  the  ap- 
pellee in  the  course  of  the  trial.  The  counsel  who  made 
the  opening  statement  to  the  jury  began:  ''In  this  case 
Patrick  McCarthy,  thirty-three  years  of  age,  with  a  wife 
and  five  children,"  when  he  was  interrupted  with  an  objec- 
tion, which  the  court  sustained.  In  cross-examining  one 
of  appellant's  witnesses  in  regard  to  the  taking  of  a  writ- 
ten statement  of  a  witness  for  the  appellee  at  the  offi'ce  of 
appellant,  appellee's  counsel  asked  if  Mr.  Bayne,  the  attor- 
ney of  the  Aetna  Insurance  Company,  was  present.  On 
objection  the  question  was  withdrawn,  counsel  saying  that 
he  meant  Mr.  Bayne,  the  attorney  for  The  Spring  Valley 
Coal  Company.  Several  objections  were  also  made  in  the 
course  of  the  argument  of  appellee's  counsel  to  the  jury. 

The  statement  to  the  jury  that  the  appellee  had  a  wife 
and  five  children  was  manifestly  improper.  Its  only  object 
could  have  been  to  enhance  the  damages  by  getting  before 
the  jury,  in  this  improper  and  unprofessional  manner,  facts 
calculated  to  arouse  their  s^Tupathy,  which  counsel  knew 
could  not  in  any  legitimate  way  be  brought  to  their  atten- 
tion.   To  admit  evidence  of  such  facts  is  error.     {Jones  & 


496  Trial  Peactice  [Chap.  12 

Adams  Co.  v.  George,  227  111.  64.)  The  fact  once  lodged  in 
the  minds  of  the  jury  could  not  be  erased  by  an  instruction, 
and  appellee  by  this  statement  secured  the  benefit  of  the 
fact  to  the  same  extent  as  if  he  had  introduced  evidence 
to  prove  it. 

The  question  in  which  Mr.  Bayne  was  referred  to  as  the 
attorney  of  the  Aetna  Insurance  Company  was  also  justly 
subject  to  criticism.  The  question  asked  was  as  follows: 
''At  the  time  that  this  statement  was  taken  from  Luke 
Frain  at  the  office  of  The  Spring  Valley  Coal  Company, 
was  Mr.  Bayne,  the  attorney  for  the  Aetna  Insurance  Com- 
pany, there?"  It  is  as  strange  as  it  is  unfortunate  that 
this  question  should  have  been  asked  through  mere  inad- 
vertence, as  stated  in  appellee's  brief.  It  is  strange  that  with 
the  name  of  appellant  in  counsel's  mouth,  the  name  of  Mr. 
Bayne,  who  was  then  present  assisting  in  the  trial  as  attor- 
ney for  the  appellant,  should  have  associated  itself  in  coun- 
sel's mind  and  speech  with  the  name  of  the  Aetna  Insurance 
Company  as  attorney  instead  of  with  the  name  of  the  ap- 
pellant. The  question  and  the  circumstances  were  well 
adapted  to  intimate  strongly  to  the  jury  that  the  appellant 
was  insured  against  liability  for  accidents  of  this  character, 
and  that  the  party  which  would  have  to  respond  for  any 
judgment  which  might  be  rendered  was  the  Aetna  Insur- 
ance Company.  Evidence  of  this  character  was  not  compe- 
tent. The  intimation  may  not  have  been  true,  and  it  is  un- 
fortunate that  the  suggestion  should  have  been  inadvert- 
ently made.  The  only  effect  it  could  have  would  be  to  con- 
vey an  improper  impression  to  the  jury. 

The  Appellate  Court  required  a  remittitur  of  $2000  from 
the  judgment  as  the  alternative  of  a  reversal  on  account  of 
the  effect  on  the  minds  of  the  jury  of  the  improper  state- 
ment in  regard  to  appellee's  wife  and  children.  Such  re- 
mittitur does  not,  however,  cure  the  error.  {Jones  S 
Adams  Co.  v.  George,  supra.)  It  is  impossible  to  tell  the 
effect,  on  the  verdict,  of  the  impressions  wrongfully  con- 
veyed to  the  jury's  mind  by  the  improper  conduct  of  coun- 
sel. 

The  judgment  will  be  reversed  and  the  cause  remanded 
for  a  new  trial. 

Reversed  and  remanaed. 


Chap.  12]  Argument  and  Conduct  of  Counsel  497 

BEOWN  V.  SWINEFORD. 

Supreme  Court  of  Wisconsin.    1878. 

44  Wisconsin,  282, 

Action  for  an  assault  and  battery. 

Ryan,  C.  J.  *  *  * 

********** 

II.  Following  for  once  a  bad  practice,  the  learned  coun- 
sel for  the  respondent,  in  closing  the  argument  of  the  case 
to  the  jury,  forgot  himself  so  far  as  to  exceed  the  limits  of 
professional  freedom  of  discussion. 

It  appears  by  the  bill  of  exceptions,  that  he  waived  the 
opening  argument  to  the  jury.  A  very  strict  rule  might 
hold  this  to  give  the  other  side  the  right  to  close.  If  sucli 
a  waiver  should  still  leave  the  closing  argument  to  the 
plaintiff,  it  certainly  confined  it  to  a  strict  reply  to  the  de- 
fendant's argument,  excluding  general  discussion  of  the 
case.  The  sole  object  of  all  argument  is  the  elucidation  of 
the  truth,  greatly  aided  in  matters  of  fact,  as  well  as  in 
matters  of  law,  by  full  and  fair  forensic  discussion.  And 
this  is  always  imperiled  when  either  party,  by  any  practice, 
is  able  to  present  his  views  of  the  case  to  the  jury  without 
opportunity  of  the  other  to  comment  on  them.  And  if  the 
party  entitled  to  the  opening  argument,  relying  on  the 
strength  of  his  case  without  discussion,  waive  the  right  to 
open,  he  waives  the  right  to  discuss  the  case  generally,  and 
should  not  be  permitted  to  do  so  out  of  his  order,  and  after 
the  mouth  of  the  other  party  is  closed.  His  close,  if  per- 
mitted to  close  the  argument,  should  be  limited  to  com- 
ments on  the  argument  of  the  other  side.  This  is  essential 
to  the  fairness  and  usefulness  of  juridical  discussion  at  the 
bar. 

It  sufficiently  appears  in  the  present  case,  that  the 
learned  counsel  for  the  plaintiff  did  not  properly  confine  his 
closing  argument  to  a  reply.  It  is  very  doubtful  if  that 
alone  would  be  error  sufficient  to  reverse  the  judgment,  if 
an  exception  had  been  taken  by  the  appellant,  which  does 
not  appear  to  be  the  case.  But  the  learned  counsel  went 
hevond  the  le£>Mtimate  scope  of  all  argument,  by  stating 
and  commenting  on  facts  not  in  evidence. 
T.  p.— 32 


498  Trial  Practice  [Chap.  12 

In  actions  of  tort,  calling  for  exemplary  damages,  evi- 
dence of  the  pecuniary  ability  of  the  defendant  to  pay  them 
is  admissible.  Birchard  v.  Booth,  4  Wis.  67;  Barnes  v.  Mar- 
tin, 15  Wis.  240.  This  appears  to  be,  as  Mr.  Justice  Cole 
remarks  in  Birchard  v.  Booth,  a  fair  corollary  of  the  rule 
of  exemplary  damages.  Perhaps  the  corollary  is  not  bet- 
ter founded  in  principle  than  the  rule;  but  the  court  takes 
them  as  it  finds  them  established. 

It  appeared  in  evidence,  that  the  appellant  was  an  officer 
of  a  railroad  company,  and  that  the  locus  in  quo  was  within 
depot  grounds  of  the  company.  No  evidence  appears  to 
have  been  given  of  the  ability  of  the  appellant  to  pay  ex- 
emplary damages.  The  learned  counsel  appears  to  have 
undertaken  to  supply  this  want  of  evidence,  by  comment- 
ing to  the  jury  upon  the  appellant's  connection  with  the 
railroad  company,  and  the  wealth  and  power  of  the  com- 
pany as  a  great  corporation,  and  the  defendant's  ability, 
from  his  connection  with  it,  to  pay  any  judgment  which 
might  be  rendered  against  him.  The  bill  of  exceptions 
states,  that  "no  record  was  kept  of  these  remarks,  and 
the  court  is  unable  to  state  more  specifically  the  substances 
of  the  language  used."  But  enough  appears  to  show,  not 
that  the  learned  counsel  commented  on  facts  not  in  evi- 
dence, but  in  effect  testified  to  the  facts  himself.  It  was 
in  effect  telling  the  jury  that  the  appellant's  position  with 
the  corporation  gave  him  the  ability  to  pay  large  damages, 
and  nearly — if  not  quite — that  they  might  measure  the 
damages  by  the  wealth  of  the  railroad  company  itself. 

Amongst  other  evidence  of  the  appellant's  ability  to  pay, 
it  might  undoubtedly  have  been  shown  that  he  received 
large  emoluments  from  his  position  in  the  railroad  com- 
pany; and  possibly  that  the  railroad  company  had  assumed 
the  appellant's  tort  and  the  payment  of  the  judgment.  And 
it  was  not  the  duty  or  the  right  of  counsel,  was  not  within 
the  proper  scope  of  professional  discussion,  to  assume  the 
facts  as  proven,  or  to  state  them  to  the  jury  as  existing; 
founding  his  argument  pro  tanto  upon  them.  And  this 
was  the  more  marked  in  the  present  case,  because  it  was 
made  for  the  first  time  in  what  should  have  been  a  mere 
reply;  and  still  more,  because  the  court  below  had  already 
admonished  counsel  to  confine  himself  to  the  evidence,  and 
not  to  go  outside  of  the  record. 


Chap.  12]  Trial  Peactice  499 

The  appellant  took  his  exceptions;  and  his  counsel  now 
supports  it  by  numerous  cases,  some  of  which  are — as  far 
as  they  go — admirable  discussions  of  professional  ethics, 
and  all  of  which  are  well  worth  the  attention  of  the  bar.  All 
of  them  support  the  rule  now  adopted  by  this  court,  that  it 
is  error  sufficient  to  reverse  a  judgment,  for  counsel,  againsi 
objection,  to  state  facts  pertinent  to  the  issue  and  not  in 
evidence,  or  to  assume  arguendo  such  facts  to  be  in  the 
case  when  they  are  not.  Some  of  the  cases  go  further,  and 
reverse  judgments  for  imputation  by  counsel  of  facts  not 
pertinent  to  the  issue,  but  calculated  to  prejudice  the  case. 
Tucker  v.  Eenniker,  41  N.  H.  317;  State  v.  Smith,  75  N.  C. 
306;  Ferguson  v.  State,  49  Ind.  33;  Hennies  v.  Vogel,  Sup. 
Court  III,  7  Cent.  L.  J.,  18. 

There  are  cases  in  conflict  with  those  which  support  this 
rule.  But,  in  the  judgment  of  this  court,  the  rule  is  sup- 
ported by  the  weight  of  authority  and  by  principle. 

Doubtless  the  circuit  court  can,  as  it  did  in  this  case, 
charge  the  jury  to  disregard  all  statements  of  fact  not  in 
evidence.  But  it  is  not  so  certain  that  a  jury  will  do  so. 
Verdicts  are  too  often  found  against  evidence  and  without 
evidence,  to  warrant  so  great  a  reliance  on  the  discrimin- 
ation of  juries.  And,  without  notes  of  the  evidence,  it  may 
be  often  difficult  for  juries  to  discriminate  between  the 
statements  of  fact  by  counsel,  following  the  evidence  and 
outside  of  it.  It  is  sufficient  that  the  extra-professional 
statements  of  counsel  may  gravely  prejudice  the  jury  and 
alTect  the  verdict. 

The  profession  of  the  law  is  instituted  for  the  adminis- 
tration of  justice.  The  duties  of  the  bench  and  bar  differ 
in  kind,  not  in  purpose.  The  duty  of  both  alike  is  to  es- 
tablish the  truth  and  to  apply  the  law  to  it.  It  is  essential 
to  the  proper  administration  of  justice,  frail  and  uncer- 
tain at  best,  that  all  that  can  be  said  for  each  party,  in  the 
determination  of  fact  and  law,  should  be  heard.  Forensic 
strife  is  but  a  method,  and  a  mighty  one,  to  ascertain  tlie 
truth  and  the  law  governing  the  truth.  It  is  the  duty  of 
counsel  to  make  the  most  of  the  case  which  his  client  is  able 
to  give  him ;  but  counsel  is  out  of  his  duty  and  his  riglit, 
and  outside  of  the  prin-ciple  and  object  of  his  profession, 
when  he  travels  out  of  his  client's  case  and  assumes  to  sup- 
ply its  deficiencies.      Therefore  is  it  that  the  nice  sense  of 


500  Trial  PRACTICE  [Chap.  12 

the  profession  regards  with  such  distrust  and  aversion  the 
testimony  of  a  lawyer  in  favor  of  his  client.       It  is  the 
duty  and  right  of  counsel  to  indulge  in  all  fair  argument 
in  favor  of  the  right  of  his  client ;  but  is  outside  of  his  duty 
and  his  right  when  he  appeals  to  prejudice  irrelevant  to 
the  case.      Properly,  prejudice  has  no  more  sanction  at  the 
bar  than  on  the  bench.      But  an  advocate  may  make  him- 
self the  alter  ego  of  his  client,  and  indulge  in  prejudice  in 
his  favor.       He  may  even  share  his  client's   prejudices 
against  his  adversary,  as  far  as  they  rest  on  the  facts  in 
his  case.      But  he  has  neither  duty  nor  right  to  appeal  to 
their  prejudices,   just   or  unjust,   against   his   adversary, 
dehors  the  very  case  he  has  to  try.      The  very  fullest  free- 
dom of  speech  within  the  duty  of  his  profession  should  be 
accorded   to  'Counsel;   but   it   is   license,   not   freedom   of 
speech,  to  travel  out  of  the  record,  basing  his  arguments 
on  facts  not  appearing,  and  appealing  to  prejudices  irrele- 
vant to  the  case  and  outside  of  the  proof.      It  may  some- 
times be  a  very  difficult  and  delicate  duty  to  confine  coun- 
sel to  a  legitimate  course  of  argument.       But,  like  other 
difficult  and  delicate  duties,  it  must  be  performed  by  those 
upon  whom  the  law  imposes  it.      It  is  the  duty  of  the  cir- 
cuit courts,  in  jury  trials,  to  interfere  in  all  proper  cases  of 
their  own  motion.      This  is  due  to  truth  and  justice.    And 
if  counsel  persevere  in  arguing  upon  pertinent  facts  not 
before  the  jury,  or  appealing  to  prejudices  foreign  to  the 
case  in  evidence,  exception  may  be  taken  by  the  other  side, 
which  may  be  good  ground  for  a  new  trial,  or  for  a  re- 
versal in  this  court. 

It  is  with  regret  that  the  court  is  obliged  to  hold  that 
both  appear  to  have  been  done  in  this  case.  It  was  no  fair 
inference  for  argument  that,  because  the  appellant  was 
the  servant  of  a  wealthy  railroad  company,  he  himself  was 
wealthy;  or  that  the  jury  might  take  into  consideration,  in 
assessing  damages,  the  power,  wealth  and  influence  of  the 
corporation.  Popular  prejudice  against  great  corpora- 
tions is,  perhaps,  a  sufficient  difficulty  in  the  way  of  the 
administration  of  justice,  in  cases  in  which  such  corpora- 
tions themselves  are  parties;  it  is  intolerable  that  it  should 
be  extended  to  their  servants.  For  all  that  appears  in 
this  case,  the  apjx'llant  may  be  as  poor  as  Job  in  his  down- 
fall.     Ilis  wealth,  if  he  had  it,  was  legitimate  subject  of 


Chap.  12]    Akgument  and  Conduct  of  Counsel  50] 

evidence,  not  legitimate  subject  of  argument,  without  evi- 
dence. And  his  fortune  or  misfortune  in  being  the  ser- 
vant of  a  corporation  was  legitimate  ground  for  no  appeal 
against  him  in  a  court  of  justice. 

It  is  to  the  honor  of  the  bar  that  this  is  the  first  time  that 
this  question  has  come  before  this  court.  Yet  it  is  not 
to  be  ignored  that  the  practice  here  condemned  has  some- 
times been  indulged  in.  And  it  is,  perhaps,  not  to  be  re- 
gretted that  the  question  has  first  come  here  in  the  case 
of  an  eminent  member  of  the  bar;  a  gentleman  of  high 
character,  personal  and  professional,  known  to  every  mem- 
ber of  this  court;  whose  professional  ability  needs  no  ad- 
ventitious aid,  and  who  probably  fell  into  this  error  cas- 
ually and  inadvertently.  His  professional  standing  shields 
him  from  personal  censure,  while  it  will  give  emphasis  to 
the  rule  laid  down. 

By  the  Court. — The  judgment  is  reversed,  and  the  cause 
remanded  to  the  court  below  for  a  new  triaL 


TOLEDO,  ST.  LOUIS  &  WESTERN  RAILROAD 
COMPANY  V.  BURR. 

Supreme  Court  of  Ohio.      1910. 

82  Ohio  State,  129. 

This  action  was  originally  commenced  in  the  court  of 
common  pleas  of  Henry  ^county,  Ohio,  by  Burr  &  Jeakle 
and  The  Ohio  German  Fire  Insurance  Company  as  plain- 
tiffs, against  The  Toledo,  St.  Louis  &  Western  Railroad 
Company  as  defendant,  to  recover  damages  from  said  rail- 
road company  for  the  destruction  by  fire— alleged  to  have 
been  commnr^<ited  by  sparks  emitted  from  one  of  defend- 
ant's locomotive  engines — of  a  sawmill  owned  by  said  Burr 
&  Jeakle  and  insured  by  them  in  The  Ohio  German  Fire 
Insurance  Company.  *    *    * 

Crew,  J. — The  only  error  assigned  in  this  case  which 
need  be  specially  considered  in  this  opinion,  is  that  of  the 
alleged  misconduct  of  counsel  in  the  argument  of  the  'Case 
to  the  jury.       Upon  the  argument  of  this  cause  in  the 


502  Trial  Peactice  [Chap.  V2 

court  of  common  pleas  one  of  the  counsel  for  plaintiffs 
stated  to  the  jury  among  other  things,  "that  within  thirty 
days  after  the  occurrence  of  this  fire,  Mr.  Schmettau,  as 
counsel  for  the  defendant,  made  an  offer  of  settlement, 
and  that  offer  was  repeated  as  late  as  the  day  of  the  com- 
mencement of  this  trial."  To  this  statement  the  defend- 
ant by  its  counsel  then  and  there  excepted.  And  there- 
upon, to  quote  from  the  record,  "counsel  who  had  made 
the  statement,  stated  to  the  jury  that  he  withdrew  the 
statement  objected  to,"  and  the  court  then  instructed  the 
jury  as  follows:  "Gentlemen  of  the  jury,  it  becomes  my 
duty  to  say  to  you  on  this  question  that  here  is  absolutely 
no  evidence  in  this  case  that  either  party  ever  wanted  to 
settle  or  that  any  attempt  was  ever  made  to  settle;  and 
I  will  say  to  you  further,  as  a  matter  of  law,  that  if  the 
parties  had  gotten  together  in  an  effort  to  settle  this  case, 
the  law  wouldn't  permit  such  effort  to  settle  to  be  given  to 
the  jury  in  evidence;  it  is  your  duty  to  disregard  abso- 
lutely the  whole  of  any  statement  by  any  counsel  to  the  ef- 
fect that  any  effort  was  made  to  settle  this  case  or  any 
other  case."  And  thereupon  the  argument  proceeded. 
That  the  statements  thus  made  by  counsel  transcended  the 
bounds  of  ligitimate  argument  and  were  grossly  improper, 
is  both  obvious  and  conceded,  but  it  is  claimed  that  any 
prejudicial  effect  which  such  statements  may  have  had  was 
removed  or  cured  by  the  subsequent  action  of  court  and 
counsel.  This  conclusion,  we  think,  by  no  means  follows, 
nor  does  it  affirmatively  appear  in  this  case  that  such  con- 
clusion is  justified  by  the  facts.  Wliile  it  is  true  that 
courts  of  last  resort  have  frequently,  though  not  uni- 
formly, held  the  rule  to  be,  that  the  prejudi.ce,  if  any,  re- 
sulting from  the  misconduct  of  counsel  in  argument  to 
the  jury  mav  be  eliminated  or  cured  by  the  prompt  with- 
drawal of  the  objectionable  statements  made  by  counsel, 
accompanied  by  an  instruction  from  the  court  to  the  jury 
to  disregard  sunh  statements,  yet  this  rule,  so  far  as  our 
examination  of  the  authorities  has  disclosed,  is  recognized 
and  applied  by  the  courts  in  those  cases  only,  where  it  is 
made  to  appear  by  the  record  from  a  consideration  of  the 
character  of  th'^  statements  made,  that  their  nreiiidicial 
o^^ocf  hn=;  probnljlv  boori  n^'orte^^  hv  snoh  witlulrnwal  and 
instruction.       As  remarked  ])y  Sliauck,  J.,  in  Cleveland, 


Chap.  12]  Argument  and  Conduct  of  Counsel  503 

Painesville  &  Eastern  Railroad  Co.  v.  Pritschau,  69  Ohio 
St.,  447:  *'It  is  due  to  differences  in  the  character  of  the 
misconduct  rather  than  to  differences  of  opinion  in  re- 
viewing courts  that  it  has  in  some  cases  been  held  that  the 
effect  of  the  misconduct  may  be  eliminated  by  instructions, 
and  in  others  that  it  cannot  be."  When  we  consider,  in 
the  present  case,  that  there  was  no  direct  evidence  estab- 
lishing th.^  oriirin  of  this  fire,  and  that  upon  the  whole  of 
the  evidence  adduced  on  the  trial  the  question  of  defend- 
ant's negligence  and  consequent  liability  was  at  best  a 
very  close  question  of  fact  involved  in  much  uncertainty 
and  doubt,  the  harmful  and  extremely  prejudicial  effect  of 
a  statement  by  counsel  to  the  jury,  that  soon  after  the  fire 
the  railroad  company  had  offered  to  settle  the  loss,  and 
that  such  offer  had  been  renewed  on  the  very  day  the  trial 
commenced,  becomes  at  once  perfectly  apparent.  And 
the  attempted  Avithdrawal  of  these  statements  from  the 
jury  was,  we  think,  wholly  impotent  to  rid  them  of  the  mis- 
chievous inference  that  they  were  nevertheless  true;  and 
was  utterly  ineffectual  to  dislodge  or  remove  from  the 
minds  of  the  jurors  the  harmful  impression,  which  such 
statements  were  calculated,  and  ob^dously  intended,  to 
produce.  No  other  rational  conclusion  can  be  reached  in 
this  case  than  that  plaintiff's  counsel  by  the  making  of  such 
statements  intended  thereby  and  in  that  way  to  get  before 
the  jury  a  fact  which  he  was  not  entitled  to,  and  one  which 
from  considerations  of  public  policy  the  law  forbade 
should  be  mentioned  on  the  trial;  and  this,  for  the  sole 
and  obvious  purpose  of  inducing  in  the  minds  of  the  jury 
the  impression  or  belief,  that  the  railroad  company  in  mak- 
ing such  offer  of  settlement  had,  indirectly  at  least,  con- 
fessed and  admitted  its  liability.  Manifestly  this  was  the 
purpose  of  counsel's  statements,  and  we  think  it  impos- 
sible to  say  in  this  case  that  su-eh  was  not  their  effect. 
While  it  should  perhaps  be  said,  that  after  objection  made, 
court  and  counsel  did  all  in  their  power  to  counteract  and 
overcome  the  effect  of  these  improper  and  prejudicial 
statements,  yet  the  mischief  had  been  done,  the  poison  had 
been  injected,  and  that  which  thereafter  O'ccurred  was  not, 
in  our  judgment,  a  sufficient  antidote.  It  is  the  policy  of 
the  law  to  encourage  the  settlomont  of  legal  controversies, 
and  hence  it  does  not  permit  an  offer  of  compromise  to  be 


504  Trial  Peactice  [Chap.  12 

given  in  evidence  as  an  acknowledgment  or  admission  of 
the  party  making  it,  and  this  salutary  rule,  which  is 
grounded  upon  considerations  of  public  policy,  just  as  im- 
peratively forbids  that  the  fact  that  such  offer  was  made 
shall  be  mentioned  or  commented  upon  by  counsel  in  argu- 
ment to  the  jury,  and  when  it  is,  unless  it  shall  clearly  ap- 
pear from  the  record  in  the  particular  case  that  the  verdict 
of  the  jury  was  not  affected  thereby,  the  misconduct  is  such 
as  to  require  in  the  due  administration  of  justice,  that  a  new 
trial  be  granted  therefor.  The  view  that  misconduct  of 
counsel,  such  as  is  complained  of  in  this  case  is  sufficient  to 
warrant  and  require  the  granting  of  a  new  trial  unless  it  be 
made  to  appear  that  the  verdict  of  the  jury  was  not  in  any 
manner  influenced  thereby,  is  fully  supported  by  the  several 
cases  cited  in  the  brief  of  counsel  for  plaintiff  in  error,  and 
by  many  others. 

Judgments  of  the  circuit  court  and  of  the  court  of  com- 
mon pleas  reversed,  and  cause  remanded  to  the  latter  court 
for  a  re-trial  according  to  lau). 

Speae,  Davis,  Shauck  and  Price,  JJ.,  concur. 


FERTIG  V.  STATE. 

Supreme  Court  of  Wisconsin,      1898. 

100  Wisconsin,  301. 

Maeshall,  J.  The  errors  assigned  on  behalf  of  plaintiff 
in  error  will  be  considered  in  their  order  and  are  as  fol- 
lows: *  *  *  (2)  permitting  the  prosecuting  attorney  to 
use  improper  language,  detrimental  to  the  accused,  in  clos- 
ing his  argument  to  the  jury;  *    *    * 

2.  The  prosecuting  attorney  was  pennitted  to  say,  in 
closing  the  case  to  the  jury,  roplyirig  to  remarks  of  the  at- 
torney for  the  ar-cused  regarding  the  testimony  of  William 
Spauiding:  "What  would  counsel  have  him  do?  Come 
here  and  shower  bouquets  on  the  assassin  of  his  brother? 
Crown  him  with  a  wreath  of  laurels?"      And  also  permit- 


Chap.  12]  Argument  and  Conduct  of  Counsel  505 

ting  the  district  attorney  to  say,  in  substance,  that  there  was 
murder  in  the  heart  of  the  accused  as  he  proceeded  to  and 
effected  the  homicide, — that  he  had  murder  in  his  heart,  in 
his  eye,  and  in  his  brain;  that  he  stood  where  the  tracks  in- 
dicated to  get  a  good  aim;  the  object  of  his  vengeance  was 
coming,  sitting  on  the  wood  in  full  view;  he  (the  accused) 
was  a  crack  shot  and  knew  it;  he  cocked  his  gun,  drew  the 
bead  on  the  deceased,  and  the  deed  was  done,  and  a  son  and 
brother  was  sent  to  his  Maker  without  a  moment's  warning, 
by  the  act  of  an  assassin, — as  vile  an  act  as  ever  happened 
on  earth ;  so  foul  that  it  would  be  worthy  of  the  vicegerent 
of  the  monarch  of  hell.  That  such  language,  with  the  earn- 
estness with  which  we  may  well  assume  the  words  were  ut- 
tered in  the  closing  moments  of  an  important  trial,  was 
highly  calculated  to  carry  the  jury  along  the  line  of  thought 
which  it  indicated,  that  is,  that  the  accused  was  guilty,  can- 
not be  doubted ;  but  whether  it  was  outside  the  case,  or  tend- 
ed unfairly  to  influence  the  jury,  and  to  swerve  them  from 
the  duty  of  deciding  the  case  on  the  evidence,  and  that  alone, 
in  the  light  of  the  law  governing  the  subject,  is  quite  an- 
other question.  So  long  as  counsel  did  not  depart  from 
the  evidence  produced,  but  confined  his  argument  to  rea- 
soning from  that  up  to  the  conclusion  that  it  established 
guilt,  however  eloquently  and  persuasively  he  may  have 
handled  his  subject,  it  was  not  only  legitimate  but  commend- 
able. Within  the  record  in  this  regard,  the  field  is  broad, 
and  the  license  of  the  advocate,  and  duty  as  well,  permits 
him  to  say  with  the  utmost  freedom  what  the  evidence  tends 
to  prove,  and  that  it  convinces  him,  and  should  convince  the 
jurors  as  well,  of  the  fact  in  issue.  As  said  in  People  v. 
Hess,  85  Mich.  128:  ''To  deny  to  a  prosecuting  officer  that 
privilege,  would  be  to  deny  him  the  right  to  pla.ce  before 
the  jury  the  logic  of  the  testimony  which  leads  his  mind  to 
the  inevitable  conclusion  of  guilt,  and  which  he  has  a  right 
to  presume  will  load  them  to  the  same  conclusion,  if  they 
view  it  as  he  docs."  That  does  not  mean  that  a  prosecut- 
ing officer  may  express  his  opinion  independent  of  the  evi- 
dence that  the  accused  is  guilty,  or  his  opinion  of  guilt, 
which  may  or  may  not  be  based  on  the  evidence,  but  that  he 
may  state  from  the  record,  upon  which  the  issue  is  to  be  sub- 
mitted to  the  jury,  that  it  establishes  guilt.  To  do  the 
latter  is  but  to  state  the  evidence,  draw  inferences  there- 


506  Teial  Pkactice  [Chap.  12 

from,  and  proceed,  reasoning  naturally  from  step  to  step 
up  to  the  logical  conclusion,  and  state  it,  all  being  legitimate 
parts  of  legitimate  argument;  and  if  the  introduction  and 
discussion  lead  to  such  conclusion,  though  stated  with  great 
earnestness  and  with  strong  feeling  and  conviction,  so  long 
as  the  advocate  keeps  within  the  record,  the  accused  has  no 
legitimate  ground  of  complaint.  That  appears  to  be  what 
was  done  in  this  case.  There  is  nothing  to  indicate  that  the 
district  attorney  asserted  that  the  accused  was  a  murderer 
or  assassin,  except  with  reference  to  the  offense  for  which 
he  was  being  tried,  and  as  he  drew  that  conclusion  from  the^ 
evidence.  It  was  the  inevitable  conclusion  of  the  line  of 
argument  pursued  by  the  prosecutor,  from  the  evidence, 
and  could  not  have  been  otherwise  understood  by  the  jury. 
It  is  quite  unlike  Scott  v.  State,  91  Wis.  552,  where  the  dis- 
trict attorney  spoke  of  the  accused  as  a  thief,  not  with  refer- 
ence to  the  offense  for  which  he  was  on  trial,  but  as  a  fact 
tending  to  establish  guilt  of  that  offense. 

As  to  remarks  made  in  repl.y  to  those  of  the  attorney  for 
plaintiff  in  error,  regarding  William  Spaulding,  it  is  suf- 
ficient to  say  that  in  using  the  term  "assassin"  it  is  quite 
clear  that  the  district  attorney  was  speaking  from  the  evi- 
dence in  the  case  as  he  viewed  it,  and  that  the  jury  must 
have  so  understood  him.  He  had  a  right  to  assume  that  the 
evidence  produced  on  the  part  of  the  state  was  true,  and  that 
it  established  what  it  tended  to  establish,  and  that  it  pointed 
most  strongly  to  the  guilt  of  the  accused  as  charged.  To 
address  the  jury  accordingly  can  hardly  be  said  to  have 
been  such  an  abuse  of  the  privilege  of  counsel  for  the  state, 
and  so  prejudicial  to  the  accused,  as  to  warrant  a  reversal 
of  the  judgment.  True,  harsh  and  violent  language  should 
not  be  used  by  counsel,  certainly  in  criminal  prosecutions, 
though  whether  language  be  harsh  and  abusive  depends 
largely  upon  the  evidence  in  the  'Case,  but  in  the  absence  of 
some  manifest  abuse  of  the  privilege  of  legitimate  argu- 
ment, clearly  working  prejudice  to  the  accused,  it  cannot  be 
considered  reversible  error.  In  Spnlin  v.  People,  '[?>!  111. 
538,  whore  the  evidence  on  the  part  of  the  state  established 
the  guilt  of  the  accused,  the  court  held  that,  assuming  the 
truthfulness  of  the  people's  evidence,  which  assumption  the 
prosecuting  attorney  had  a  right  to  make  on  the  argument, 
it  was  not  such  an  abuse  of  the  privilege  of  counsel  in  argu- 


Chap.  12]  Argument  and  Conduct  of  Counsel  507 

ment  to  the  jury,  to  speak  of  the  accused,  with  reference 
to  the  offense  for  which  they  were  on  trial  as  robbers  and 
burglars,  as  to  work  a  reversal  on  that  ground.  So  we  may 
say  it  was  not  an  abuse  of  the  rules  of  legitimate  argument, 
in  this  case,  to  speak  of  the  accused,  from  the  evidence  of 

the  state,  as  a  murderer. 

********** 

By  the  court.  *    *    *    The  judgment  is  affirmed. 


GERMAN-AMERICAN  INSURANCE  COMPANY 
V.  HARPER. 

Supreme  Court  of  Arkansas.      1902. 

70  Arkansas,  305. 

Wood,  J.  Appellees  sued  upon  an  insurance  policy  which 
contained  this  clause:  "$2,000  total  concurrent  insurance 
permitted,  including  this  policy."  Subsequent  to  the  is- 
suance of  this  policy,  appellees  took  a  policy  in  another  com- 
pany for  $2,000,  which  it  was  conceded  avoided  the  policy 
sued  on,  unless  the  appellant  had  notice  of  the  additional  in- 
surance before  the  loss,  and  failed  to  object  to  such  insur- 
ance. Appellant  conceded  that  if  its  local  agent  had  notice 
of  the  additional  insurance,  and  failed  to  object  thereto,  the 
forfeiture  was  waived.  Appellant's  local  agent  testified 
that  he  had  no  notice  of  the  additional  insurance  before  the 
loss.  Witnesses  for  appellees  testified  that  he  had  such 
notice.  The  issue  was  sharply  drawn  on  this  question  of 
fact.  Marshall,  the  witness  upon  whom  appellant  relied 
to  establish  the  want  of  notice  of  the  current  insurance,  re- 
sided and  was  the  local  agent  at  Fort  Smith.  The  cause 
was  being  tried,  on  change  of  venue,  at  Greenwood.  James 
Brizzolara,  one  of  the  attorneys  for  appellees,  in  the  first  or 
opening  argument  to  the  jury,  used  this  language:  "Gen- 
tlemen of  the  jury,  if  you  knew  Marshall's  business  meth- 
ods, you  would  say,  'God  save  the  plaintiffs,  and  God  save 
all  those  who  deal  with  him.'  "  Appellant  objected  to  this 
remark  of  counsel,  and  the  court  said  to  the  jury:  "Col. 
Brizzolara 's  remark  is  entirely  imj^roper,  and  should  not 


508  Tkial  Peactice  [Chap.  12 

have  been  made,  and  I  now  instruct  you  to  pay  no  atten- 
tion to  it  in  making  up  your  verdict,  and  it  must  not  be  con- 
sidered by  you.  and  give  it  no  weight,  but  your  duty  is  to 
consider  the  evidence  admitted  by  the  court  in  the  progress 
of  the  trial."  Coh  Brizzolara  was  not  a  witness  in  the  case. 
There  was  no  evidence  as  to  Marshall's  business  methods, 
— no  impeachment  of  his  business  integrity  or  efficiency, 
nor  of  his  moral  character  in  the  community  where  he  lived. 

The  rule  of  procedure  to  which  this  court  is  committed  is 
very  well  expressed  in  Rudolph  v.  Landwerlen,  92  lud.  34, 
40,  where  it  is  said:  "Very  many  abuses  in  argument  may 
be  sufficiently  corrected  by  the  instructions  of  the  court  to 
the  jury,  and  a  large  discretion  as  to  the  refusing  of  new 
trials  because  of  such  violations  belongs  to  trial  courts,  and 
this  court  will  not  interfere  because  of  an  abuse  in  argu- 
ment which  was  sufficiently  counteracted  by  the  action  of 
tlie  trial  court  in  the  premises ;  but  it  will  interfere  where, 
notwithstanding  the  efforts  of  the  trial  court  to  correct  the 
abuse,  the  irregularity  appears  to  be  such  as  to  prevent  a 
fair  trial,  and  the  particular  circumstances  of  each  case  will 
guide  this  court  to  its  decision,"  In  Chicago,  B.  &  Q.  Uy. 
Co.  V.  Kellogg,  76  N.  W.  Rep.  462,  it  is  said:  "If  the  trans- 
gression be  flagrant, — if  the  offensive  remark  has  stricken 
deep,  and  is  of  such  a  character  that  neither  rebuke  nor  re- 
traction can  entirely  destroy  its  sinister  influence, — a  new 
trial  should  be  promptly  awarded,  regardless  of  the  want 
of  objection  or  exception."  In  the  language  of  Judge 
Mulkey  in  Quinn  v.  People,  123  111.  333:  "As  well  might 
one  attempt  to  brush  off  with  the  hand  a  stain  of  ink  from  a 
piece  of  white  linen"  as  to  eradicate  from  the  jury  the  im- 
pression that  was  created  by  the  remarks  of  Col.  Brizzolara. 
The  appellant  was  wholly  dependent  upon  the  testimony  of 
Marshall  to  sustain  its  contention.  He  testified  that  he 
bad  no  knowledge  and  had  not  acquiesced  in  the  additional 
insurance.  In  this  statement  he  was  in  direct  conflict  with 
several  witnesses  for  appellees,  yet  it  was  the  jury's  pro- 
vince to  believe  him  in  preference  to  all  the  rest.  This  the 
jurors  would  not  likely  have  done,  even  without  the  deroga- 
torv  statements  of  counsel.  Still,  they  might  have  done  so, 
and  it  is  not  for  thi-^  r-ourt  to  sav  that  they  would  not  have 
given  more  weight  to  his  evidence  than  the  other  witnesses, 


Chap.  12]  Akgument  akd  Conduct  of  Counsel  509 

had  it  not  been  for  the  improper  remarks.      These  remarks 
were  gravely  prejudicial.      True,  they  were  not  made  un- 
der the  sanction  of  an  oath  as  a  witness.      But  the  state- 
ment of  matters  of  fact  by  counsel  of  high  character  and 
excellent   standing  in   the  profession  might   be  as   read- 
ily  accepted   and   believed   by   the  jurors,   and   make   as 
profound  and  ineradicable  impression  upon  their  minds, 
as  if  they  had  been  uttered  under  oath.       The  remarks 
of  the  learned  counsel,  if  not  directly,  certainly  by  insinua- 
tion conveyed  to  the  jury  a  knowledge  on  his  part  of  Mar- 
shall's business  methods  which  were  so  inefficient  or  disre- 
putable as  to  make  him  untrustworthy,  and  one  whom  all 
having  business  in  his  line  should  shun.      The  statement  of 
counsel  that  an  acquaintance  with  Marshall's  business  meth- 
ods would  make  ihe  jurors  feel  like  imploring  the  Almight> 
to  save  plaintiffs  and  all  who  had  dealings  with  him  was 
well  calculated  to  make  the  jury  regard  him  as  entirely  un- 
reliable, to  say  the  least.      We  cannot  see  how  it  is  pos- 
sible for  the  jury  not  to  have  been  prejudiced,  notwithstand- 
ing all  the  commendable  efforts  of  the  presiding  judge  to 
prevent  such  result.      The  only  'Cure  for  such  prejudice  is  a 
new  trial.      For  that  purpose  the  judgment  is  reversed,  and 
the  cause  remanded. 
EiDDicK,  J.,  dissenting.     ' 


MUHPHY'S  EXECUTOR  V.  HOAGLAND. 

Court  of  Appeals  of  Kentucky.      1908. 

32  Kentucky  Law  Reporter,  839. 

Opinion  of  the  court  by  Judge  Lassing,  reversing. 

This  is  a  contest  over  the  will  of  John,  commonly  known 

as  *' Pat"  Murphy.  *    *    * 

********** 

Appellant  also  complains  of  the  misconduct  of  counsel 
for  the  contestants  during  the  progress  of  the  trial.  Dur- 
ing the  course  of  the  cross-examination  of  the  witness,  ^far- 
garet  Devereaux,  counsel  for  contestants  asked  this  ques- 
tion: *'Do  you  know  how  many  of  the  jurors  wanted  to 


510  Trial  Practice  [Chap.  12 

break  it,"  (referring  to  the  will  of  John  Murphy  at  the 
last  trial  thereof),  and  continued,  ''Don't  jou  know,  as  a 
matter  of  fact,  that  eight  stood  for  breaking  the  will?" 

This  question  was  at  once  objected  to  by  counsel  for  the 
propounder  and  the  objection  was  sustained.  The  learned 
counsel  must  have  known  that  any  question  which  referred 
to  the  result  or  the  partial  result  of  a  former  trial  of  the 
case  was  very  improper,  in  fact  inexcusable.  Propoun- 
der's  counsel  could  not  permit  the  question  to  go  unnoticed, 
and  the  very  fact  that  he  objected,  but  served  to  emphasize 
it's  importance  in  the  minds  of  the  jurors.  They  may 
have,  and  doubtless  did,  attach  much  importance  to  the 
question  which  was  asked  and  objected  to  by  counsel  for  the 
propounder,  and  even  though  it  was  excluded  by  the  court, 
the  jurors,  being  sensible  and  intelligent  men,  could  not  rid 
their  minds  of  the  information  which  this  question  gave 
them,  to-wit:  That  eight  jurors  had,  on  a  previous  trial, 
stood  for  breaking  the  will.  They  no  doubt  reasoned  amon^^ 
themselves  that  had  this  not  been  true,  the  propounder 
would  not  have  objected  to  its  being  asked,  and,  being  taken 
as  true,  it  was  in  fact  stating  to  the  jury  that,  while  you  are 
to  try  this  case  according  to  the  evidence,  we  want  you  to 
know  that,  at  least,  eight  jurors  on  a  former  trial  believed 
that  the  will  should  not  be  permitted  to  stand. 

In  the  case  of  the  Illinois  Central  Railroad  Co.  v.  Jolly, 
27  Ky.  Law  Rep.,  119,  counsel,  in  closing  his  argument  in 
the  lower  court,  used  this  language:  "That  this  action  had 
been  in  the  courts  some  four  or  five  years,  and  that  the 
railroad  company  was  furnished  with  lawyers  and  steno- 
graphers for  the  purpose  of  catching  at  every  little  thing 
to  take  the  case  to  the  Court  of  Appeals  again,  in  order  to 
defeat  the  claim  by  reversing  it,  it  having  lieretofore  been 
reversed  in  the  Court  of  Appeals  on  a  technicality,"  and 
other  similar  statements.  On  appeal  this  court  said: 
''When  counsel,  in  the  heat  of  argument,  oversteps  the 
bounds  and  objection  is  made  by  the  opposing  side,  the 
court  should  exclude  the  improper  matter.  The  remarks 
of  appellee's  counsel  that  this  lady  had  obtained  a  judg- 
ment on  the  former  trial;  that  it  had  been  appealed  from 
and  reversed  by  this  court  upon  a  toiphnicality,  and  that  ap- 
pellant was  then  preparing,  witli  the  assistance  of  skilled 
lawyers  and  stenographers,  to  appeal  from  any  verdict 


Chap.  12]  Aegument  and  Conduct  of  Counsel  511 

that  might  be  rendered  and  obtain  another  reversal,  were 
improper. ' ' 

And  in  the  case  of  the  L.,  H.  &  St.  L.  Ry.  Co.  v.  Morgan, 
23  Ky.  Law  Rep.,  121,  appellee's  counsel  had  used  this  lan- 
guage: "The  railroad  can  appeal  this  case,  but  the  plain- 
tiff, Morgan,  is  a  poor  man  and  has  no  money  to  appeal 
with,  and  will  have  to  accept  what  you  do,  but  the  railroad 
has  money  to  appeal  this  case,  and  it  will  do  so.'  ' 

And  this  court,  in  passing  upon  that  case  on  review  here, 
said:  "There  is  a  latitude  allowed  in  oral  argument,  but 
it  should  not  extend  as  far  as  was  done  in  the  quotation." 
In  each  of  these  cases  above  referred  to  the  judgment  was 
reversed  because  of  improper  argument  and  other  errors. 

For  the  reasons  given  the  judgment  is  reversed  and  cause 
remanded,  for  further  proceedings  consistent  with  this 
opinion. 


WILLIAMS  V.  BROOKLYN  ELEVATED  RAILROAD 

COMPANY. 

Court  of  Appeals  of  Neiv  York.     1891. 

126  Neiv  York,  96. 

This  action  was  brought  to  recover  damages  to  plaintiff's 
premises  in  Brooklyn,  caused  by  the  erection  and  operation 
of  defendant's  elevated  railroad  upon  the  street  in  front  of 
them. 

Andrews,  J.    *     *    * 

*#«♦**♦*** 

The  counsel  for  the  plaintiff,  in  his  address  to  the  jury, 
after  referring  to  "the  utter  disregard  of  the  rights  of  the 
private  citizens  by  corporations,"  proceeded  to  read  from  a 
newspaper,  "The  New  York  Tribune,"  an  article  headed 
"Only  a  Boy  Peddler,"  purporting  to  be  an  account  of  the 
death  of  a  boy,  "a  little  fellow  fifteen  years  old,  a  Rouman- 
ian, a  stranger  in  this  great  city  (New  York),  selling  collar 
buttons  and  pocket  combs  from  a  modest  tray,  to  help  sup- 


512  Teial  Practice  [Chap.  12 

port  his  mother  and  eight  brothers  and  sisters,"  caused  by 
his  touching  an  electric  wire  which,  the  article  stated,  had 
been  left  swinging  for  months  from  a  pole  near  which  the 
boy  had  taken  his  stand.  This  was  made  by  the  writer 
the  text  for  comment  on  the  neglect  of  the  city  officials  in 
failing  to  take  effective  measures  to  have  electric  wires 
placed  under  ground,  and  the  article  concluded  with  the 
statement:  *'It  is  shameful  that  where  such  perils  are  in 
question  there  sliould  be  procrastination,  shiftlessness  and 
incompetency  which  would  not  be  tolerated  in  a  private 
business." 

When  the  counsel  for  the  plaintiff  commenced  reading 
the  article  the  defendant's  counsel  interposed  and  objected 
to  the  reading,  and  asked  the  court  to  prevent  it.  The  court 
overruled  the  objection,  and  the  defendant's  counsel  ex- 
cepted. The  plaintiff's  counsel  then  resumed  the  reading, 
and  was  reminded  by  the  court  that  the  reading  was  under 
exception,  but  the  counsel  proceeded  and  read  the  remainder 
of  the  article. 

It  is  the  privilege  of  counsel  in  addressing  a  jury  to  com- 
ment upon  every  pertinent  matter  of  fact  bearing  upon 
the  questions  which  the  jury  have  to  decide.  This  privilege 
it  is  most  important  to  preserve  and  it  ought  not  to  be 
narrowed  by  any  close  construction,  but  should  be  inter- 
preted in  the  largest  sense.  The  right  of  counsel  to  address 
the  jury  upon  the  facts  is  of  public  as  well  as  private 
consequence,  for  its  exercise  has  always  proved  one  of  the 
most  effective  aids  in  the  ascertainment  of  truth  by  juries 
in  'Courts  of  justice,  and  this  concerns  the  very  highest 
interest  of  the  state.  The  jury  system  would  fail  much 
more  frequently  than  it  now  does  if  freedom  of  advocacy 
should  be  unduly  hampered  and  counsel  should  be  prevented 
from  exercising  within  the  four  corners  of  the  evidence 
the  widest  latitude  by  way  of  comment,  denunciation  or 
appeal  in  advocating  his  cause.  This  privilege  is  not  be- 
yond regulation  by  the  court.  It  is  subject  to  be  controlled 
by  the  trial  judge  in  the  exercise  of  a  sound  discretion,  to 
prevent  undue  prolixity,  waste  of  time,  or  unseemly  critic- 
ism. The  privilege  of  counsel,  however,  does  not  justify 
the  introduction  in  his  summing  up  of  matters  wholly  im- 
material and  irrelevant  to  the  matter  to  be  decided,  and 
wliich  the  jury  have  no  right  to  consider  in  arriving  at  their 


Chap.  12]  Argument  and  Conduct  of  Counsel  51o 

verdict.  The  jury  are  sworn  to  render  their  verdict  upon 
the  evidence.  The  law  sedulously  guards  against  the  intro- 
duction of  irrelevant  or  incompetent  evidence,  by  which 
the  rights  of  a  r^arty  may  be  prejudiced.  The  purpose  of 
these  salutary  rules  might  be  defeated  if  jurors  were  al- 
lowed to  consider  facts  not  in  evidence,  and  the  privilege  of 
counsel  can  never  operate  as  a  license  to  state  to  a  jury 
facts  not  in  evidence,  or  to  present  considerations  which 
have  no  legitimate  bearing  upon  the  case  and  which  the 
jury  would  have  no  right  to  consider.  ^Yhere  counsel  in 
summing  up  proceeds  to  dilate  upon  facts  not  in  evidence 
or  to  press  upon  the  jury  considerations  which  the  jury 
would  have  no  right  to  regard,  it  is,  we  conceive,  the  plain 
duty  of  the  court,  upon  objection  made,  to  interpose,  and  a 
refusal  of  the  court  to  interpose,  where  otherwise  the  right 
of  the  party  would  prejudiced,  would  be  legal  error.  There 
are  many  cases  sustaining  this  conclusion.  Among  them 
are  Mitchum  v.  State  of  Georgia  (11  Geo.  6J6) ;  Tucl-er  v. 
Henniker  (41  N.  H.  317) ;  Rolfe  v.  Rumford  (66  Me.  564). 
The  reading  by  counsel  in  summing  up  to  the  jury  of  tlie 
newspaper  article  ' '  Only  a  Boy  Peddler, ' '  was  wholly  irre- 
levant to  the  case.  It  could  have  been  read  for  no  purpose 
except  to  influence  the  jury  against  corporations  and  to 
lead  them,  under  the  influence  of  a  just  anger  ex^cited  by 
the  incident  narrated,  to  give  liberal  damages  to  the  plain- 
tiif  in  the  case  on  trial.  The  refusal  of  the  court  to  inter- 
fere, under  the  circumstances  of  this  case,  was  legal  error. 
The  privilege  of  counsel  and  the  largest  liberality  in  con- 
struing it  did  not  authorize  such  a  totally  irrelevant  and 
prejudicial  proceeding.  The  counsel  also,  during  the  sum- 
ming up,  read  a  passage  from  the  opinion  of  this  court  in 
the  Lahr  case  (104  N.  Y.  291),  after  objection  taken  by  the 
defendant's  counsel  had  been  overruled  by  the  court.  It  is 
not  important  to  consider  the  exception  to  this  ruling,  as 
the  appellant  is  entitled  to  a  reversal  for  the  reason  already 
stated.  It  may  be  observed,  however,  that  it  is  the  function 
of  the  judge  to  instruct  the  jury  upon  the  law,  and  where 
counsel  undertake  to  read  the  law  to  the  jury,  the  judge 
may  properly  interpose  to  prevent  it ;  but  if  the  judge  sees 
fit  to  permit  this  to  be  done  and  the  law  is  correctly  laid 
down  in  the  decision  or  book  used  by  counsel,  it  would 
not,  we  think,  constitute  legal  error  or  be  ground  of  ex- 
T.  p.— 33 


514  Trial  Practice  [Chap.  12 

ception  by  the  other  party,  although  snch  a  practice  is  not 
to  be  encouraged.  If,  however,  the  reading  from  a  de- 
cision was  to  bring  before  the  jury  the  facts  of  the  case 
decided,  or  the  amount  of  the  verdict,  or  the  comments 
of  the  judge  on  the  facts,  to  influence  the  jury  in  deciding 
upon  the  facts  in  the  case  on  trial,  or  in  fixing  the  amotint 
of  damages,  then  dearly  the  reading  ought  not  to  be  permit- 
ted. 

We  think  the  judgment  in  this  case  should  be  reversed 
upon  the  exception  taken  to  the  reading  of  the  newspaper 
article. 

Judgment  reversed  and  new  trial  ordered. 

All  concur. 

Judgment  reversed. 


WILKINSON  V.  PEOPLE. 
Supreme  Court  of  Illinois.    1907. 
226  Illinois,  135. 
Mr.  Justice  Wilkin  delivered  the  opinion  of  the  court: 

It  appears  that  an  action  on  the  case  had  been  brought 
l)y  one  Rose  Strang  against  the  Lake  Street  Elevated  Rail- 
road Company  for  personal  injuries,  in  wliich  the  defend- 
ant and  others  testified  on  behalf  of  the  plaintiff.  The  suit 
resulted  in  a  verdict  in  favor  of  the  plaintitf.  William 
Elmore  Foster  and  Joseph  B.  David,  who  were  attorneys 
for  the  railroad  company,  were  engaged  with  one  L.  L. 
Austin,  a  claim  agent,  and  Thomas  McGuire,  a  detective, 
in  endeavoring  to  obtain  affidavits  in  support  of  a  motion 
for  a  new  trial,  and  claiming  to  have  learned  from  the 
defendant  that  his  testimony  in  the  ^case  was  not  true,  after 
some  preliminary  conversations  a  meeting  was  arranged 
for  the  22nd  of  April,  1904,  in  the  office  of  Foster,  at  which 
Foster,  McGuire,  David,  Miss  Neville,  (a  stenographer,) 
and  the  defendant  were  present.  Conversations  then  took 
place  as  to  the  testimony  given  by  Wilkinson  upon  the  trial 
of  the  personal  injury  case,  at  which  time  it  is  claimed  the 


Chap.  12]  Argument  and  Conduct  of  Counsel  515 

writing  set  up  in  the  indictment  as  an  affidavit  was  read  to 
the  defendant.  The  defendant,  together  with  Rose  Strang 
and  others,  was  subsequently  indicted  in  the  criminal  court 
of  Cook  county  for  having  conspired  to  extort  money  from 
the  said  elevated  railroad  company,  upon  the  trial  of  which 
it  is  charged  the  defendant  committed  the  perjury  at- 
tempted to  be  assigned. 

As  above  stated,  Josex)h  B.  David  was  one  of  the  attor- 
neys for  the  elevated  railroad  company  in  the  personal 
injury  case  and  testified  on  behalf  of  the  People  in  this 
case.  He  swears  he  was  also  special  counsel  for  the  People 
in  the  trial  of  the  conspiracy  case,  and  appears  prominently 

in  the  argument  of  this  -case  *  *  * 

********** 

It  is  insisted  that  the  judgment  below  should  be  reversed 
because  one  of  the  attorneys  who  appears  as  counsel  for 
the  People  and  argued  the  case  orally  in  this  court  was 
a  leading  and  material  witness  on  behalf  of  the  prosecution 
in  the  court  below.  In  justification  of  his  conduct  it  is  in- 
sisted that  there  is  no  law  in  this  State,  statutory  or  other- 
wise, forbidding  an  attorney  to  be  a  witness  and  at  the 
same  time  an  attorney  in  a  case.  Doubtless  that  is  true; 
but  courts  have  generally  condemned  the  practice  as  one 
which  should  be  discountenanced  and  of  doubtful  profes- 
sional propriety.  We  said,  speaking  by  Justice  Breese,  in 
Morgan  v.  Roberts,  38  111.  65,  on  page  85:  ''We  are  not 
advised  that  it  is  contrary  to  any  statute  or  to  any  maxim 
of  the  common  law  to  make  the  attorney  in  a  cause  a  wit- 
ness in  the  cause  he  is  managing.  This  is  a  matter  which 
appeals  to  the  professional  pride  of  an  attorney  and  his 
sense  of  his  true  position  and  duty.  In  the  English  courts, 
in  several  cases,  it  was  held  that  an  attorney  cannot  appear 
in  the  same  cause  in  the  double  capacity  of  witness  and 
advocate,  and  it  has  been  so  ruled  in  Pennsvlvania  and 
in  Iowa,  on  the  circuit.  In  Indiana  it  was  held  by  Judge 
McDonald,  now  United  States  district  judge,  that  an  at- 
torney in  a  cause  could  not  be  permitted  to  testify  to  the 
general  merits  of  the  ease.  In  Frear  v.  Drinlrr,  8  Pa.  St. 
Rep.  521.  the  court  said  that  it  was  a  hiirhly  indecent  prac- 
tice for  an  attornev  to  cross-examine  witnesses,  address  the 
jury  and  give  evidence  himself  to  contradict  the  witness: 
that  it  was  a  practice  to  be  discountenanced  by  court  and 


516  Teial  Practice  [Chap.  12 

counsel ;  that  it  was  sometimes  indispensable  that  an  attor- 
ney, to  prevent  injustice,  should  give  evidence  for  his  client. 
It,  however,  leads  to  abuse.  But  at  the  same  time  there  was 
no  law  to  prevent  it.  All  the  court  can  do  is  to  discounten- 
ance the  practice,  and,  when  the  evidence  is  indispensable, 
to  recommend  to  the  counsel  to  withdraw  from  the  cause. 
This  subject  has  engaged  the  attention  of  other  courts  and 
of  this  court,  and  however  indecent  it  may  be  in  practice 
for  an  attorney  retained  in  a  case  and  managing  it,  to  be 
a  witness  also,  we  cannot  say  he  is  incompetent,  and  must 
leave  him  to  his  own  convictions  of  what  is  right  and  pro- 
per under  such  circumstances."  And  again,  in  Ross  v. 
Demoss,  45  111.  447,  Justice  Lawrence  said:  ''On  the  trial 
below  the  evidence  was  conflicting,  but  it  seems  to  prepon- 
derate in  favor  of  the  decree.  The  weight  of  the  evidence 
of  Garner  is  somewhat  impaired  from  the  fact  that  he  was 
proved  to  have  been  one  of  the  attorneys  in  the  case,  and 
had  a  conditional  fee,  dependent  on  the  result  of  the  suit. 
It  is  of  doubtful  professional  propriety  for  an  attorney 
to  become  a  witness  for  his  client  without  first  entirely 
withdrawing  from  any  further  connection  with  the  case, 
and  an  attorney  occupying  the  attitude  of  both  witness 
and  attorney  for  his  client  subjects  his  testimony  to  critic- 
ism, if  not  suspicion ;  but  where  the  half  of  a  valuable  farm 
depends  upon  his  evidence  he  places  himself  in  an  unpro- 
fessional position  and  must  not  be  surprised  if  his  evidence 
is  impaired.  While  the  profession  is  an  honorable  one,  its 
members  should  not  forget  that  even  they  may  so  act  as  to 
lose  public  confidence  and  general  respect." 

The  foregoing  language  of  eminent  judges  of  this  court 
was  used  in  civil  cases  and  is  peculiarly  applicable  to  this 
case,  in  which  the  People  are  generally  understood  to  be 
represented  by  public  officers.  Here  the  witness  first  ap- 
peared as  an  attorney  for  the  Lake  Street  Elevated  Rail- 
road Company  in  the  personal  injury  case,  and  was  promi- 
nent in  procuring  affidavits  in  support  of  the  motion  for  a 
new  trial,  and  one  of  which  he  attempted  to  obtain  from 
the  defendant,  Wilkinson.  He  next  appeared,  he  says,  as 
special  counsel  for  the  People  in  the  prosecution  of  the 
conspiracy  case,  and  while  he  may  not  have  actively  ap- 
peared in  the  prosecution  of  this  case  on  the  trial  below,  it 
is  quite  apparent  that  he  had  more  or  less  to  do  with  shap- 


Chap.  12]   Argument  and  Conduct  of  Counsel  517 

ing  the  course  of  the  prosecution,  and  voluntarily,  as  we 
have  already  said,  appeared  as  a  prominent  witness  in  the 
case.  There  is  substantial  ground  for  the  inference  that  he 
regarded  the  litigation  throughout  as  between  the  elevated 
railroad  company  and  the  defendant  or  defendants,  rather 
than  as  by  the  People  for  the  enforcement  of  public  rights. 
The  fact  that  he  does  appear  in  this  record  in  the  unenvi- 
able attitude  of  a  willing  witness  and  a  zealous  attorney 
should  not,  perhaps,  work  a  reversal  of  the  judgment  be- 
low if  the  record  were  in  all  other  respects  free  from  error, 
but  we  cannot  overlook  such  professional  impropriety  when 
our  attention  is  called  to  it. 

Other  grounds  of  reversal  urged  have  received  consider- 
ation, but  we  think  they  are  without  substantial  merit. 

For  the  errors  indicated  the  judgment  below  will  be  re- 
versed. 

Judgment  reversed. 

Mr.  Justice  Carter,  dissenting. 


CAMPBELL  V.  MAHER. 

Supreme  Court  of  Indiana.    1885. 

105  Indiana,  383. 

Elliott,  J. 

In  the  course  of  his  argument  to  the  jury  the  counsel  for 
the  appellee  said:  ''The  record  in  this  case  shows  that  the 
plaintiff  was  not  willing  to  try  this  case  at  his  home  in 
Daviess  county,  among  his  neighbors,  but  has  brought  the 
case  to  Pike  county  on  a  change  of  venue,  among  strang- 
ers." The  appellant  objected,  and  the  court,  as  the  record 
recites,  "remarked  that  it  was  not  improper  for  counsel  to 
refer  to  matters  which  were  disclosed  by  the  record,  since 
the  whole  record  was  before  the  jury,  but  that  the  argument 
of  counsel  had  gone  too  far,  and  should  be  limited  to  the 
record."  lYliat  followed  is  thus  exhibited  in  the  record: 
"And  thereupon  counsel  for  the  plaintiff  resumed  his  seat, 
and  the  counsel  for  the  defendant  again  turned  to  the  jury, 
and,  resuming  his  argument,  said:  'The  court  says  T  may 


518  Teial  Practice  [Chap.  12 

refer  to  the  record.  Gentlemen,  the  record  of  this  case 
shows  that  the  cause  was  brought  from  Daviess  .county  to 
this  county  on  the  motion  of  the  plaintiff.'  To  which 
statement  the  plaintiff's  counsel  again  objected,  and  again 
assigned  in  support  of  his  objection  the  reasons  assigned 
by  him  in  support  of  the  objection  to  argument  of  defend- 
ant's counsel  herein  above  set  out,  but  the  court  overruled 
said  objection,  to  which  the  plaintiff's  counsel  excepted, 
whereupon  the  defendant's  counsel  again  turned  to  the 
jury  and  said:  'Gentlemen  of  the  jury,  I  have  only  stated 
to  you  what  the  record  in  this  cause  shows  to  be  true,  and 
the  court  has  decided  that  I  have  a  riglit  to  do  this.'  " 

The  trial  court  was  unquestionably  wrong  in  ruling  that 
everything  that  appears  in  the  record  is  the  subject  of 
argument  to  the  jury,  for  there  are  many  things  which 
the  record  discloses  that  the  jury  have  no  right  to  consider. 
Juries,  as  every  one  knows,  are  sworn  to  try  the  case  ''ac- 
cording to  the  law  and  the  evidence,"  and  an  argument 
must  be  confined  to  the  evidence  and  the  law.  AYhere  a 
party  secures  a  legal  right  according  to  law,  the  fact  that 
he  has  secured  it  can  not  be  used  to  his  prejudice.  A  change 
of  venue  is  a  legal  right,  and  where  it  is  awarded  by  the 
court  in  conformity  to  law,  it  can  not  be  used  to  the  pre- 
judice of  the  party  by  wiiom  it  was  obtained,  nor  can  it 
be  commented  on  in  argument.  It  would  be  a  perversion  of 
law  to  permit  the  exercise  of  a  legal  right,  under  the  order 
of  the  court,  to  be  made  the  subject  of  consideration  by  a 
jury.  We  need  not,  however,  discuss  this  question  further 
for  it  is  settled  against  the  appellee  by  authority.  Farnian 
V.  Lauman,  73  Ind,  568. 

The  comments  of  counsel  were  not  mere  general,  fugitive 
statements,  but  they  were  reiterated,  and  they  were  also 
sanctioned  by  the  ruling  of  the  court,  so  that  there  was  a 
deliberate  and  emphatic  presentation  of  an  improper  sub- 
ject to  the  jury,  and  unless  we  can  ascertain  from  the  record 
that  no  harm  resulted,  we  must  reverse.  The  record  does 
not  enable  us  to  declare  that  the  appellant  was  not  injured, 
for  the  case  is  a  close  one  upon  the  evidence,  and  we  can 
not  say  tliat  the  misconduct  of  the  appellee's  counsel  did  the 
appellant  no  injury.  There  are  cases  where  a  reversal  will 
not  be  adjudged,  although  there  is  some  misconduct  in  argu- 
ment. Shular  v.  State,  ante,  p.  289,  and  authorities  cited; 


Chap.  12]   Argument  and  Conduct  of  Counsel  519 

''Misconduct  of  Counsel  in  Argument,"  14  Cent.  L.  J.  406. 
This  is  not  such  a  case. 

Judgment  reversed. 


HANSELL-ELCOCK  FOUNDEY  COMPANY  V.  CLARK. 

Supreme  Court  of  Illinois.     1905. 

214  Illinois,  399. 

Me.  Chief  Justice  Ricks  delivered  the  opinion  of  the 
court : 

This  is  an  appeal  from  a  judgment  of  the  Appellate  Court 
for  the  First  District  affirming  a  judgment  of  the  superior 
court  of  Cook  county  for  $8,000  in  favor  of  appellee,  against 
appellant,  for  damages  for  personal  injuries  sustained  by 
the  appellee  while  in  appellant's  employ.  Appellee,  at  the 
time  of  the  injury,  July  16,  1901,  was  a  structural  iron 
worker  in  appellant's  service,  engaged  in  the  construction  of 
the  St.  Cecilia  school  building, — a  three-story  structure  in 
the  city  of  Chicago, — and  while  so  engaged  was  struck  by 
a  large  iron  beam,  sustaining  the  injuries  for  which  this 
suit  was  brought. 

The  court  limited  the  time  of  the  argument  to  forty-five 
minutes  for  each  side,  but  extended  the  time  seven  minutes 
for  defendant's  counsel,  at  their  request,  but  refused  to 
grant  further  extension  although  requested  so  to  do,  and 
this  refusal  of  the  court  is  also  assigned  as  error.  It  is 
earnestly  insisted  by  counsel  for  appellant  that  because  of 
this  limitation  they  were  unduly  hampered  in  the  presenta- 
tion of  the  case  to  the  jury.  We  have  always  held  this 
question  to  be  one  within  the  sound  discretion  of  the  trial 
court,  but  that  where  it  appears  that  the  discretion  has 
manifestly  been  abused  this  court  would  reverse  the  case 
for  such  error.  In  cases  of  this  character  each  side  should 
have  ample  time  to  present  its  case  to  the  jury  and  to  thor- 
oughly argue  the  facts.  The  bare  possibility  of  compromis- 
ing the  rights  of  either  the  plaintiff  or  defendant  because 
of  not  allowing  counsel  ample  time  in  which  to  present  a 
client's  cause  should  be  carefully  guarded  against.    Under 


520  Teial  Practice  [Chap.  12 

our  system  of  jurisprudence  the  power  of  the  jury  is  so 
great,  trial  courts  should  be  liberal  in  their  allowance  to 
counsel  of  time  in  which  to  review  and  argue  the  evidence. 
The  trial  court,  however,  who  hears  the  case  is  in  a  far  bet- 
ter position  to  judge  as  to  the  time  proper  to  be  given 
counsel  for  argument  than  can  be  a  court  of  review,  and 
we  are  not  disposed  to  reverse  a  case,  for  the  reason  alone, 
that  the  time  allowed  counsel  for  argument  was  too  short, 
unless  we  are  thoroughly  satisfied  the  complaining  party 
has  in  fact  been  wronged  by  an  undue  limitation.  In  this 
case  we  think  the  trial  court  might  very  properly  have 
granted  counsel  more  time  for  argument,  but  we  do  not 
think  we  would  be  justified  in  reversing  the  case  on  the 
simple  ground  that  the  limitation  was  unjust.  But  seven 
witnesses  testified  for  appellee  and  nine  for  appellant.  The 
record  shows  that  the  examination  of  the  witnesses  began 
on  the  17th  of  March,  1903,  and  that  upon  the  convening 
of  the  court  on  the  19th  the  verdict  of  the  jury  was  returned. 
But  five  witnesses  on  each  side  testified  as  to  the  condition 
and  scene  of  the  accident.  We  cannot  say  from  a  review 
of  the  evidence  that  the  time  allotted  counsel  for  argument 
was  manifestly  too  short. 

The  judgment  of  the  Appellate  Court  will  be  affirmed. 

Judgment  affirmed. 


CHAPTER  XIII. 
SPECIAL  INTERROGATORIES. 

Section  1.    Pukpose,  Scope  and  Effect. 

CHICAGO  AND  NORTHWESTERN  RAILWAY  COM- 
PANY V.  DUNLEAVY. 

Supreme  Court  of  Illinois.    1889, 

129  Illinois,  132. 

Mr.  Justice  Bailey  delivered  the  opinion  of  the  Court : 
This  was  an  action  on  the  case,  brought  by  Annie  Dun- 
leavy,  administratrix  of  the  estate  of  John  Dimleavy,  de- 
ceased, against  the  Chicago  and  Nortliwestern  Railway 
Company,  to  recover  damages  under  the  statute  for  the 
death  of  the  plaintiff's  intestate.  The  declaration  consisted 
of  nine  counts,  to  the  fifth,  sixth  and  seventh  of  which  a 
demurrer  was  sustained.  To  the  remaining  counts  the  de- 
fendant pleaded  not  guilty,  and  on  trial  before  the  court 
and  a  ,iury,  the  issues  were  found  for  the  plaintiff  and  her 
damages  assessed  at  $1800,  and  for  that  sum  and  costs,  the 
court,  after  denying  the  defendant's  motion  for  a  new  trial, 
gave  judgment  for  the  plaintiff.  Said  judgment  was  af- 
firmed by  the  Appellate  Court  on  appeal,  and  by  a  further 
appeal  the  record  is  now  brought  to  this  court. 

The  first  count  of  the  declaration  alleges  that  the  defend- 
ant, on  the  26th  day  of  July,  1886,  by  its  servants,  ran  one 
of  its  locomotive  engines  with  a  train  of  freight  cars  thereto 
attached,  from  east  to  west  over  one  of  its  tracks  under  a 
viaduct  at  Blue  Island  avenue,  in  the  city  of  Chicago ;  that 
the  plaintiff's  intestate  was  then  and  there  in  the  employ 
of  said  city  cleaning  and  painting  the  iron  columns,  etc., 
of  said  viaduct,  and  that  "the  said  train  was,  by  and 
through  the  negligence,  carelessness  and  improper  conduct 
of  the  said  defendant,  through  its  servants  in  the  premises, 
run  at  a  high  and  dangerous  rate  of  speed,"  and  that  while 
being  so  run,  it  was  driven  against  and  upon  said  Dun- 

521 


522  Trial  Practice  [Chap.  13 

leavy,  whereby  he  was  instantly  killed.  The  second  count 
alleges  that  the  defendant,  through  its  servants,  "so  care- 
lessly, improperly  and  unskillfully  managed  and  conducted 
said  engine  and  train,  that  the  said  John  Dunleavy  was 
forcibly  knocked  down  by  said  engine  and  train"  and 
thrown  under  the  wheels  of  the  train  and  instantly  killed. 
The  third  count  sets  up  an  ordinance  of  said  city  requiring 
the  bell  of  each  locomotive  engine  to  be  rung  continually 
while  running  within  the  city,  and  alleging  that  the  defend- 
ant's servants  in  charge  of  said  train  failed  to  comply  with 
said  ordinance,  and  that  in  consequence  of  such  failure  said 
Dunleavj'-  was  killed.  The  fourth  count  is  substantially  like 
the  second.  The  eighth  count  alleges  that  the  engineer  and 
fireman  could,  by  looking,  have  seen  Dunleavy  standing  at 
his  work,  and  by  sounding  a  whistle  have  given  him  notice 
of  the  approach  of  a  train,  but  that  they  failed  to  sound 
the  whistle,  and  that  in  consequence  of  such  failure  said 
Dunleavy  was  killed.  The  ninth  count  alleges  substantially 
the  same  act  of  negligence  as  the  eighth,  though  in  different 
language.  Each  count  alleges  in  proper  form  that  Dun- 
leavy at  the  time  he  was  killed,  was  in  the  exercise  of  due 
care. 

At  the  close  of  the  trial  the  counsel  for  the  defendant 
asked  the  court  to  instruct  the  jury  that  the  evidence  in  the 
case  was  insufficient  to  sustain  a  verdict  for  the  plaintiff, 
and  that  their  verdict  should  therefore  be  for  the  defendant. 
This  instruction  the  court  refused  to  give,  and  such  refusal 
is  assigned  for  error. 

The  next  questions  to  be  considered  are  those  which 
relate  to  the  special  findings  of  the  jury.  Upon  this  branch 
of  the  case  it  is  urged,  first,  that  the  court  improperly  re- 
fused to  submit  certain  questions  of  fact  to  the  jury;  second, 
that  certain  of  the  questions  of  fact  submitted  were  not 
properly  answered;  and  third,  that  the  special  findings  of 
fact  are  inconsistent  with  the  general  verdict.  The  statute 
under  which  special  findings  may  be  required  is  but  recent, 
?ind  the  rules  of  practice  thereby  established  have  never  be- 
fore been  presented  to  this  court  for  its  consideration.  We 
must  therefore  look  mainly  to  the  statute  itself  for  our 
guide  in  determining  the  propositions  now  raised.  The 
statute  is  as  follows: 


Sec.  1]  Special  Intehkogatories  523 

Section  1.  "That  in  all  trials  by  jury  in  civil  proceed- 
ings in  this  State  in  courts  of  record,  the  jury  may  render, 
in  their  discretion,  either  a  general  or  a  special  verdict; 
and  in  any  case  in  which  they  render  a  general  verdict,  they 
may  be  required  by  the  court,  and  must  be  so  required  on 
request  of  any  party  to  the  action,  to  find  specially  upon 
any  material  question  or  questions  of  fact  which  shall  be 
stated  to  them  in  writing,  which  questions  of  fact  shall  be 
submitted  by  the  party  requesting  the  same  to  the  adverse 
l)arty  before  the  commencement  of  the  argument  to  the 
jury. 

Sec.  2.  "Submitting  or  refusing  to  submit  a  question  of 
fact  to  the  jury  when  requested  by  a  party  as  provided  by 
the  first  section  hereof  may  be  excepted  to  and  be  reviewed 
on  appeal  or  writ  of  error  as  a  ruling  on  a  question  of  law. 

Sec.  3.  "When  the  special  finding  of  fact  is  inconsistent 
with  the  general  verdict,  the  former  shall  control  the  latter 
and  the  court  may  render  judgment  accordingly." 

This  statute,  so  far  as  it  relates  to  special  verdicts,  is 
merely  declaratory  of  the  common  law.  It  has  been  compe- 
tent for  juries  at  common  law,  since  the  statute  of  13 
Edward  1,  to  find  a  general  verdict,  or  when  they  have  any 
doubt  as  to  the  law,  to  find  a  special  verdict,  and  refer 
the  law  arising  thereon  to  the  decision  of  the  court.  By 
a  special  verdict,  the  jury,  instead  of  finding  for  either 
party,  find  and  state  all  the  facts  at  issue,  and  conclude  con- 
ditionally, that  if  upon  the  whole  matter  thus  found,  the 
court  should  be  of  the  opinion  tliat  the  plaintiff  has  a  good 
cause  of  action,  they  then  find  for  the  plaintiff,  and  assess 
his  damages ;  if  otherwise,  then  for  the  defendant.  2  Tidd's 
Practice,  (Am.  ed.)  897,  and  note. 

The  rules  of  law  as  to  special  verdicts  and  their  requisites 
have  long  been  settled  both  in  this  country  and  in  England. 
Thus,  it  is  held  that  they  should  find  facts,  and  not  the 
mere  evidence  of  facts,  so  as  to  leave  nothing  for  the  court 
to  determine  except  questions  of  law.  Vhicrnt  v.  Morrhon, 
Breese,  227 ;  Brown  v.  Balson,  4  Rand.  504;  Seward  v.  Jack- 
son, 8  Cow.  406;  Henderson  v.  Aliens,  1  Hen  &  Mun.  2.35; 
Hill  V.  Covell,  1  N.  Y.  522;  Lanqleij  v.  Warren,  3  id.  327; 
Kinsley  v.  Coyle,  58  Pa.  St.  461;  Thompson  v.  Farr,  1 
Spears,  93 ;  Leach  v.  Church,  10  Ohio  St.  149 :  LaFromhios  v. 
Jackson,  8  Cow.  589.     To  authorize  a  judgment  upon  a 


524  Trial  Practice  [Chap.  13 

special  verdict,  all  the  facts  essential  to  the  right  of  the 
party  in  whose  favor  the  judgment  is  to  be  rendered,  must 
be  found  by  the  jury;  finding  sufficient  evidence,  prima 
facie,  to  establish  such  facts,  is  not  sufficient.  Blake  v. 
Davis,  20  Ohio,  231;  Hambleton  v.  Dempsey,  id.  168.  If 
probative  facts  are  found  from  which  the  court  can  declare 
that  the  ultimate  facts  necessarily  result,  the  finding  is  suf- 
ficient. Alhambra  Addition  Water  Co.  v.  Richardson,  72 
Cal.  598 ;  Coveny  v.  Hale,  49  id.  552.  A  special  verdict  can- 
not be  aided  by  intendment,  and  therefore  any  fact  not 
ascertained  by  it  will  be  presumed  not  to  exist.  Lee  v. 
Campbell,  4  Porter,  198 ;  Zumull  v.  Watson,  2  Munf.  283 ; 
Laivrence  v.  Beaiibun,  2  Bailey,  625. 

It  is  manifest  of  course  that  a  special  finding  by  a  jury 
upon  material  questions  of  fact  submitted  to  them  under  the 
provisions  of  the  statute  is  not  a  special  verdict,  but  an  es- 
sentially different  proceeding.  A  special  verdict  cannot 
be  found  where  there  is  a  general  verdict,  but  the  special 
findings  of  fact  provided  for  by  the  statute  can  be  required 
only  in  case  a  general  verdict  is  rendered.  But  while  this 
is  so,  much  light  in  relation  to  special  findings  upon  ques- 
tions of  fact,  and  their  office  and  objects  may  be  derived 
from  the  rules  applicable  to  special  verdicts.  Both  forms 
of  verdict  are  provided  for  by  the  same  statute,  and  they 
must  therefore  be  construed  as  being  in  pari  materia. 

In  giving  construction  to  the  statute,  the  first,  and  per- 
haps the  most  important  question,  relates  to  the  scope  and 
meaning  of  the  phrase,  "material  question  or  questions  of 
fact."  May  such  questions  relate  to  mere  evidentiary  facts, 
or  should  they  be  restricted  to  those  ultimate  facts  upon 
which  the  rights  of  the  parties  directly  depend?  Evidently 
the  latter:  Not  only  does  this  conclusion  follow  from  an- 
alogy to  the  rules  relating  to  si)ecial  verdicts,  but  it  arises 
from  the  very  nature  of  the  case.  It  would  clearly  be  of 
no  avail  to  require  the  jury  to  find  mere  matters  of  evi- 
dence, because,  after  being  found,  they  would  in  no  way 
aid  the  court  in  determining  what  judgment  to  render. 
Dou])tloss  a  probative  fact  from  which  the  ultimate  fact 
necessarily  results  would  be  material,  for  there  the  court 
could  infer  such  ultimate  fact  as  a  matter  of  law.  But 
where  the  probative  fact  is  merely  prima  facie  evidence  of 
the  fact  to  be  proved,  the  proper  deductions  to  be  drawn 


Sec.  1]  Special  Interrogatories  525 

from  the  probative  fact  presents  a  quefc>tion  of  fact  and  not 
of  law,  requiring  further  action  by  the  jury,  and  it  cannot 
therefore  be  made  the  basis  of  any  action  by  the  court.  Re- 
quiring the  jury  to  find  such  probative  fact  is  merely  requir- 
ing them  to  find  the  evidence  and  not  the  facts,  and  results 
in  nothing  which  can  be  of  the  slightest  assistance  to  the 
parties  or  the  court  in  arriving  at  the  proper  determination 
of  the  suit. 

The  vievf^  we  take  is  strongly  fortified  by  the  provision 
of  the  third  section  of  the  statute,  that,  when  a  special  find- 
ing of  fact  is  inconsistent  with  the  general  verdict,  the 
former  shall  control.  This  necessarily  implies  that  the  fact 
to  be  submitted  shall  be  one  which,  if  found,  may  in  its  na- 
ture be  controlling.  That  can  never  be  the  case  with  a  mere 
evidentiary  fact.  A  fact  which  merely  tends  to  prove  a 
fact  in  issue  without  actually  proving  it,  can  not  be  said 
to  be,  in  any  legal  sense,  inconsistent  with  a  general  ver- 
dict, whatever  that  verdict  may  be.  Such  inconsistency 
can  arise  only  where  the  fact  found  is  an  ultimate  fact,  or 
one  from  which  the  existence  or  non-existence  of  such  ulti- 
mate fact  necessarily  follows,  and  that  is  never  the  case 
with  that  which  is  only  prima  facie  evidence  of  the  fact 
sought  to  be  proved. 

The  common  law  requires  that  verdicts  shall  be  the  de- 
claration of  the  unanimous  judgment  of  the  twelve  jurors. 
Upon  all  matters  which  they  are  required  to  find  they  must 
be  agreed.  But  it  has  never  been  held  that  they  must  all 
reach  their  conclusions  in  the  same  way  and  by  the  same 
method  of  reasoning.  To  require  unanimity  not  only  in 
their  conclusions  but  in  the  mode  by  which  those  conclusions 
are  arrived  at  would  in  most  cases  involve  an  impossibility. 
To  require  unanimity  therefore,  not  only  in  the  result  but 
also  in  each  of  the  successive  steps  leading  to  such  result, 
would  be  practically  destructive  of  the  entire  system  of 
jury  trials.  To  illustrate,  suppose  a  plaintiff  trying  his  suit 
before  twelve  jurors,  should  seek  to  prove  a  fact  alleged 
in  his  declaration  by  giving  evidence  of  twelve  other  facts, 
each  having  an  independent  tendency  to  prove  the  fact  al- 
leged. The  evidence  of  each  probative  fact,  or  the  con- 
clusions to  be  drawn  from  it,  might  appeal  with  peculiar 
force  to  the  belief  or  judgment  of  some  one  of  the  jurors, 
but  less  so  to  his  fellows.    The  cumulative  effect  of  all  the 


526  Trial  Peactice  [Chap.  13 

evidence  might  be  such  as  to  leave  no  doubt  in  the  mind  of 
any  member  of  the  panel  as  to  the  truth  of  the  fact  alleged, 
still,  if  the  jury  were  required  to  find  specially  as  to  each 
probative  fact,  no  one  of  the  twelve  facts  would  be  at  all 
likely  to  meet  with  the  unanimous  concurrence  of  the  entire 
jury.  As  to  each  they  would  be  compelled  to  confess  their 
inability  to  agree,  or  what  would  be  its  equivalent,  say  they 
did  not  know  or  could  not  tell,  which,  if  we  apply  the  rules 
governing  special  verdicts,  would  be  tantamount  to  a  finding 
that  the  fact  was  not  proved  or  did  not  exist.  If  such  find- 
ing should  be  required,  and  should  be  given  the  effect  of 
controlling  the  general  verdict,  the  result  would  be,  that 
under  such  system  of  trial,  general  verdicts  could  but  sel- 
dom stand. 

However  natural  the  curiosity  parties  may  have  to  know 
the  precise  course  of  reasoning  by  which  jurors  may  arrive 
at  verdicts  either  for  or  against  them,  they  have  no  right, 
under  gise  of  submitting  questions  of  fact  to  be  found 
specially  by  the  jury,  to  require  them  to  give  their  views 
upon  each  item  of  evidence,  and  thus  practically  subject 
them  to  a  cross-examination  as  to  the  entire  case.  Such 
practice  would  subserve  no  useful  purpose,  and  would  only 
tend  to  embarrass  and  obstruct  the  administration  of  jus- 
tice; and  we  may  further  say  that  such  practice  finds  no 
warrant  in  our  statute. 

We  are  referred  to  one  case  in  another  State,  where,  in 
a  suit  for  personal  injuries  against  a  railroad  company, 
the  defendant  was  permitted  under  a  statute  somewhat 
similar  to  ours,  to  put  to  the  jury  no  less  than  one  hundred 
and  thirty-six  interrogatories  as  to  the  facts,  covering,  ap- 
parently every  possible  phase  of  the  evidence.  The  judg- 
ment against  the  railroad  company"  was  reversed  for  an 
erroneous  instruction  to  the  jury  as  to  the  form  to  their 
answer  to  questions  where  the  evidence  was  not  sufficient, 
but  no  suggestions  seems  to  have  been  made  that  any  por- 
tion of  the  questions  put  to  the  jury  were  improper.  What- 
ever may  be  the  view  of  such  practice  taken  by  the  courts 
of  other  States,  we  are  unwilling  to  give  our  countenance 
to  its  adoy)tion  here. 

In  the  present  case  the  defendant's  counsel  prepared  and 
submitted  fifteen  questions  of  fact  upon  which  the  court  was 
asked  to  require  the  jury  to  make  special  findings.    Of  these 


Sec.  1]  Special  Interrogatories  527 

the  eleventh  and  twelfth  were  refused.  The  first  was  mod- 
ified and  suhmitted  to  the  jury  in  its  modified  form.  The 
residue  of  the  questions  were  submitted  as  asked.  We  do 
not  understand  that  the  defendant  is  now  complaining  of 
the  action  of  the  court  in  relation  to  its  eleventh  and  twelfth 
questions  of  fact.  The  first,  as  prepared  by  the  defendant's 
counsel,  was  as  follows : 

1.  ''^^Hiat  precaution  did  the  deceased  take  to  inform 
himself  of  the  approach  of  the  train  which  caused  the  in- 
jury?" 

This  was  modified  by  the  court  so  as  to  read  as  follows : 

1.  ''Was  the  deceased  exercising  reasonable  care  for  his 
own  safety  at  the  time  he  was  killed?" 

The  ultimate  fact  which  it  was  incumbent  upon  the  plain- 
tiff to  prove,  and  which  the  defendant  sought  to  disprove, 
was  that  the  deceased,  at  the  time  he  was  killed,  was  in 
the  exercise  of  due  care.  That  was  one  of  the  issues  made 
by  the  pleadings,  and  it  was  one  of  the  ultimate  facts  upon 
which  the  plaintiff's  right  to  recover  necessarily  depended. 
What  the  deceased  did  to  inform  himself  of  the  approach  of 
the  train  was  material  only  as  tending  to  show  reasonable 
care  on  his  part  or  the  want  of  it.  His  acts  in  that  behalf, 
then,  whatever  they  may  have  been,  were  facts  which  were 
merely  evidential  in  their  nature,  and  while  they  doubtless 
would  have  had  a  tendency  to  prove  reasonable  care  or 
the  contrary,  there  were  none  of  them,  so  far  as  the  evi- 
dence shows,  which  would  have  been  conclusive  of  that 
question.  The  question  then,  as  submitted  by  the  defend- 
ant's counsel,  sought  to  obtain  a  finding  as  to  mere  pro- 
bative facts,  and  the  court,  therefore  properly  refused  to 
require  the  jury  to  answer  it.  The  question  substituted  by 
the  court  submitted  to  the  jury  a  material  and  controlling 
fact,  and  one  which  could  be  properly  made  the  subject  of  a 
special  finding. 

Complaint  is  made  to  the  answers  given  by  the  jury  to  the 
fourth  and  fifth  questions.  Those  questions  were  as  fol- 
lows: 

4.  ''Did  the  deceased  look  to  a&certain  if  the  train  in 
question  was  approaching? 

5.  "Did  the  deceased  listen  to  ascertain  if  said  train  was 
approaching?" 

To  both  of  those  questions  the  jury  answered:  "Don't 


528  Tkial  Pkactice  [Chap.  13 

know."  It  is  perhaps  questionable  whether  the  defendant, 
in  order  to  avail  itself  of  the  objection  that  no  proper  an- 
swer was  made  to  these  questions,  should  not  have  made  it 
at  the  time  the  verdict  was  returned  and  before  the  jury 
were  discharged,  for  then  the  jury  might  have  been  required 
to  complete  their  verdict  by  making  proper  answers.  Moss 
V.  Priest,  19  Abb.  Prac.  314.  But  however  that  may  be,  it 
is  manifest  that  the  error,  if  it  be  one,  cannot  have  been 
prejudicial  to  the  defendant  unless  it  can  be  seen  that 
answers  to  said  questions  most  favorable  to  the  defendant, 
which  of  course  would  have  been  answers  in  the  negative, 
would  have  constituted  a  finding  inconsistent  with  the 
general  verdict. 

If  then  we  treat  said  questions  as  having  been  answered 
in  the  negative,  would  such  answers,  either  alone  or  in  con- 
nection with  the  answers  to  the  other  questions,  have  consti- 
tuted a  finding  necessarily  inconsistent  with  the  general  ver- 
dict? To  the  second  question,  viz.,  "If  the  deceased  had 
looked  before  the  accident,  could  he  have  discovered  the 
approach  of  the  train  in  time  to  have  avoided  the  accident?" 
the  jury  answered,  "Yes,"  and  to  the  third  question,  viz., 
"If  the  deceased  had  listened  before  the  approach  of  said 
train,  could  he  have  discovered  the  approach  of  the  train 
in  time  to  have  avoided  the  accident?"  they  answered,  "If 
he  had  concentrated  his  attention  in  that  particular  direc- 
tion, yes."  The  first  question,  viz.,  "Was  the  deceased  exer- 
cising reasonable  care  for  his  safety  at  the  time  he  was 
killed?"  was  also  answered,  "Yes." 

The  question  then  presents  itself,  whether,  if  it  be  ad- 
mitted that  the  deceased  neither  looked  or  listened  for  the 
train,  and  also  that  if  he  had  looked  he  could  have  seen  it, 
and  if  he  had  listened  with  his  attention  concentrated  in 
that  direction,  he  could  have  heard  it  in  time  to  avoid  the 
accident,  such  facts  would  constitute  such  conclusive  proof 
of  contrilmtory  negligence  on  the  part  of  the  deceased  as 
would  have  barred  a  recovery.  Undoubtedly  a  failure  to 
look  or  listen,  especially  where  it  affirmatively  appears  that 
looking  or  listening  might  have  enabled  the  party  exposed 
to  injury  to  see  the  train  and  thus  avoid  being  injured,  is 
evidence  tending  to  show  negligence.  But  they  are  not 
conclusive  evidence,  so  that  a  charge  of  negligence  can  be 
predicated  upon  them  as  a  matter  of  law.    There  may  be 


Sec.  1]  Special  Interrogatoeies  529 

various  modifying  circumstances  excusing  the  party  from 
looking  or  listening,  and  that  being  the  case,  a  mere  failure 
to  look  or  listen  cannot,  as  a  legal  conclusion,  be  pronounced 
negligence  per  se. 

In  determining  whether  the  special  findings  are  inconsis- 
tent with  the  general  verdict  so  that  the  latter  must  be  held 
to  be  controlled  by  the  former,  this  court  cannot  look  at  the 
evidence.  All  reasonable  presumptions  will  be  entertained 
in  favor  of  the  verdict,  while  nothing  will  be  presumed  in 
aid  of  the  special  findings  of  fact.  The  inconsistency  must 
be  irreconcilable,  so  as  to  be  incapable  of  being  removed 
by  any  evidence  admissible  under  the  issues.  Pennsylvania 
Co.  V.  Smith,  98  Ind.  42;  McComas  v.  Haas,  107  id.  512; 
Redelsheimer  v.  Miller,  id.  485.  Under  these  principles  it 
must  be  held  that  there  is  no  necessary  or  irreconcilable 
inconsistency  between  the  special  findings  and  the  general 
verdict,  especially  in  view  of  the  fact  that  the  jury,  not- 
withstanding their  finding  that  the  deceased  did  not  look 
or  listen,  also  found  that  he  was  in  the  exercise  of  reason- 
able care. 

We  are  of  the  opinion  that  the  record  contains  no  ma- 
terial error,  and  the  judgment  of  the  Appellate  Court  will 
therefore  be  affirmed. 

Judgment  afirmed} 

1  Clementson,  in  his  work  on  Special  Verdicts  and  Findings,  ingeniously 
observes: — "The  submipsion  of  interrogatories  under  the  statute  is  a  sort  of 
'exploratory  opening'  into  the  abdominal  cavity  of  the  general  verdict  (if 
I  may  be  pardoned  a  surgical  metaphor)  by  which  the  court  determines 
whether  the  organs  are  sound  and  in  place  and  the  proper  treatment  to  be 
pursued."       Page  45. 

T.  P.— 34 


530  Trial  Practice  [Chap.  13 


Section  2.    Constitutionality. 

WALKER  V.  NEW  MEXICO  AND   SOUTHERN  PA- 
CIFIC RAILROAD  COMPANY. 

Supreme  Court  of  the  United  States.    1897, 

165  United  States,  593. 

Mr.  Justice  Brewer  delivered  the  opinion  of  the  court. 

The  testimony  was  not  preserved,  and  the  case  is  submit- 
ted to  us  upon  the  pleadings,  the  verdict,  the  special  findings 
of  fact  and  the  judgment;  and  on  the  record  as  thus  pre- 
sented plaintiff  in  error  rests  her  claim  of  reversal  upon 
three  propositions :  First,  that  the  act  of  the  territorial 
legislature,  authorizing  special  findings  of  fact  and  provid- 
ing for  judgment  on  the  special  findings,  if  inconsistent 
with  the  general  verdict  (Laws  of  New  Mexico  1889,  c.  45, 
page  97),  is  in  contravention  of  the  Seventh  Amendment  to 
the  Constitution  of  the  United  States,  which  reads : 

* '  In  suits  at  common  law,  where  the  value  in  controversy 
shall  exceed  twenty  dollars,  the  right  of  trial  by  jury  shall 
be  preserved,  and  no  fact  tried  by  a  jury  shall  be  otherwise 
re-examined  in  any  court  of  the  United  States,  than  accord- 
ing to  the  rules  of  the  common  law." 

First,  with  regard  to  the  constitutional  question,  the 
specific  objection  is  thus  stated  in  the  brief : 

''It  is  not  contended,  although  the  English  authorities 
would  appear  to  warrant  the  contention,  that  at  the  common 
law  the  judge  might  not  require  the  jury  to  answer  special 
questions,  or  interrogate  the  jury  as  to  the  grounds  upon 
which  their  general  verdict  was  found ;  but  it  is  most  earn- 
estly contended  that  the  extent  of  the  power  of  the  judge, 
if  in  his  opinion  the  special  findings  or  answers  of  the  jury 
to  interrogatories  were  inconsistent  with  the  general  ver- 
dict, was  to  set  aside  the  general  verdict  and  award  a  ven- 
ire de  novo,  while  under  this  statute  authority  is  attempted 
to  be  conferred  upon  the  judge  to  render  final  judgment 
upon  tlie  special  findings." 

We  deem  it  unnecessary  to  consider  the  contention  of 
defendant  in  error  that  the  territorial  courts  are  not  courts 


Sec.  2]  Special  Intereogatokies  531 

of  the  United  States,  and  that  the  Seventh  Amendment  is 
not  operative  in  the  Territories,  for  by  the  act  of  April  7, 
1874,^  c.  80,  18  Stat.  27,  Congress,  legislating  for  all  the 
Territories,  declared  that  no  party  ''shall  he  deprived  of  the 
right  of  trial  by  jury  in  cases  cognizable  at  common  law;" 
and  while  this  may  not  in  terms  extend  all  the  provisions 
of  the  Seventh  Amendment  to  the  Territories,  it  does  secure 
all  the  rights  of  trial  by  jury  as  they  existed  at  common 
law. 

The  question  is  whether  this  act  of  the  territorial  legis- 
lature in  substance  impairs  the  right  of  trial  by  jury.  The 
Seventh  Amendment,  indeed,  does  not  attempt  to  regulate 
matters  of  pleading  or  practice,  or  to  determine  in  what  way 
issues  shall  be  framed  by  which  questions  of  fact  are  to  be 
submitted  to  a  jury.  Its  aim  is  not  to  preserve  mere  mat- 
ters of  form  and  procedure  but  substance  of  right.  This 
requires  that  questions  of  fact  in  common  law  actions  shall 
be  settled  by  a  jury,  and  that  the  court  shall  not  assume 
directly  or  indirectly  to  take  from  the  jurj^  or  to  itself  such 
prerogative.  So  long  as  this  substance  of  right  is  preserved 
the  procedure  by  which  this  result  shall  be  reached  is 
wholly  within  the  discretion  of  the  legislature,  and  the 
courts  may  not  set  aside  any  legislative  provision  in  this 
respect  because  the  form  of  action — the  mere  manner  in 
which  questions  are  submitted — is  different  from  that  which 
obtained  at  the  common  law. 

Now  a  general  verdict  embodies  both  the  law  and  the 
facts.  The  jury,  taking  the  la^v  as  given  by  the  court,  apply 
that  law  to  the  facts  as  they  find  them  to  be  and  express 
their  conclusions  in  the  verdict.  The  power  of  the  court 
to  grant  a  new  trial  if  in  its  judgment  the  jury  have  misin- 
terpreted the  instructions  as  to  the  rules  of  law  or  misap- 
plied them  is  unquestioned,  as  also  when  it  appears  that 
there  was  no  real  evidence  in  support  of  any  essential  fact. 
These  things  obtained  at  the  common  law;  they  do  not  tres- 
pass upon  the  prerogative  of  the  jury  to  determine  all 
questions  of  fact,  and  no  one  to-day  doubts  that  such  is  tlie 
legitimate  duty  and  function  of  the  court,  notwithstanding 
the  terms  of  the  constitutional  guarantee  of  right  of  trial 
by  jury.  Beyond  this,  it  was  not  infrequent  to  ask  from 
the  jury  a  special  rather  than  general  verdict,  that  is.  in- 
stead of  a  verdict  for  or  against  the  plaintiff  or  defendant 


532  Trial  Peactice  [Chap.  13 

embodying  in  a  single  declaration  the  whole  conclusion  of 
the  trial,  one  which  found  specially  upon  the  various  facts 
in  issue,  leaving  to  the  court  the  subsequent  duty  of  determ- 
ining upon  such  facts  the  relief  which  the  law  awarded  to 
the  respective  parties. 

It  was  also  a  common  practice  when  no  special  verdict  was 
demanded  and  when  only  a  general  verdict  was  returned  to 
interrogate  the  jury  upon  special  matters  of  fact.  Whether 
or  no  a  jury  was  compelled  to  answer  such  interrogations, 
or  whether,  if  it  refused  or  failed  to  answer,  the  general 
verdict  would  stand  or  not,  may  be  questioned.  Mayor  &c 
V.  Clark,  3  Ad.  &  Ell.  506.  But  the  right  to  propound  such 
interrogatories  was  undoubted  and  often  recognized. 
Walker  v.  Bailey,  65  Maine,  354;  Spurr  v.  Shelburne,  131 
Mass.  429.  In  the  latter  case  the  court  said  (page  430) : 
"It  is  within  the  discretion  of  the  presiding  justice  to  put 
inquiries  to  the  jury  as  to  the  grounds  upon  which  they 
found  their  verdict,  and  the  answers  of  the  foreman,  as- 
sented to  by  his  fellows,  may  be  made  a  part  of  the  record, 
and  will  have  the  effect  of  special  findings  of  the  facts  stated 
by  him.  And  no  exception  lies  to  the  exercise  of  this  dis- 
cretion. Dorr  V.  Fenno,  12  Pick.  521;  Spoor  v.  Spooner, 
12  Met.  281 ;  Mair  v.  Basset,  117  Mass.  356 ;  Lanier  v.  Earle, 
5  Allen,  22."  So  that  the  putting  of  special  interrogatories 
to  a  jury  and  asking  for  specific  responses  thereto  in  addi- 
tion to  a  general  verdict  is  not  a  thing  unknown  to  the  com- 
mon law,  and  has  been  recognized  independently  of  any 
statute.  Beyond  this  we  cannot  shut  our  eyes  to  the  fact 
that  in  many  States  in  the  Union,  in  whose  constitutions  is 
found  in  the  most  emphatic  language  as  assertion  of  the 
inviolability  of  trail  by  jury,  are  statutes  similar  to  the  one 
enacted  l)y  the  territorial  legislature  of  New  Mexico;  that 
those  statutes  have  been  uniformly  recognized  as  valid,  and 
that  a  large  amount  of  the  litigation  in  the  courts  is  carried 
through  in  obedience  to  the  provisions  of  such  statutes.  It 
would  certainly  startle  the  profession  to  be  told  that  such 
stf^tntes  contravene  a  constitutional  requirement  of  the  in- 
vi'tlnbility  of  jury  trials. 

Indeed,  the  very  argument  of  counsel  for  plaintiff  in  error 
is  an  admission  that  up  to  a  certain  extent  those  statutes 
are  undoubtedly  valid.  That  argument  is  practically  that 
when  the  specific  findings  are  returned  and  found  to  be 


Sec.  2]  Special  Inteerogatoeies  533 

conflicting  with  the  general  verdict  the  court  is  authorized 
to  grant  a  new  trial,  but  can  do  no  more.  But  why  should 
the  power  of  the  court  be  thus  limited?  If  the  facts  as  spec- 
ially found  compel  a  judg-ment  in  one  way,  why  should  not 
the  court  be  permitted  to  apply  the  law  to  the  facts  as  thus 
found?  It  certainly  does  so  when  a  special  verdict  is  re- 
turned. ^^^^en  a  general  verdict  is  returned  and  the  court 
determines  that  the  jury  have  either  misinterpreted  or  mis- 
applied the  law  the  only  remedy  is  the  award  of  a  new  trial, 
because  the  constitutional  provision  forbids  it  to  find  the 
facts.  But  when  the  facts  are  found  and  it  is  obvious  from 
the  inconsistency  between  the  facts  as  found  and  the  general 
verdict  that,  in  the  latter,  the  jury  have  misinterpreted  or 
misapplied  the  law,  what  constitutional  mandate  requires 
that  all  should  be  set  aside  and  a  new  inquiry  made  of  an- 
other jury?  Of  what  significance  is  a  question  as  to  a 
specific  fact?  Of  what  avail  are  special  interrogatories 
and  special  findings  thereon  if  all  that  is  to  result  there- 
from is  a  new  trial,  which  the  court  might  grant  if  it  were 
of  opinion  that  the  general  verdict  contained  a  wrong  in- 
terpretation or  application  of  the  rules  of  law?  Indeed,  the 
very  thought  and  value  of  special  interrogatories  is  to 
avoid  the  necessity  of  setting  aside  a  verdict  and  a  new  trial 
— to  end  the  controversy  so  far  as  the  trial  court  is  con- 
cerned upon  that  single  response  from  the  jury. 

We  are  clearly  of  opinion  that  this  territorial  statute  does 
not  infringe  any  constitutional  provision,  and  that  it  is 
within  the  power  of  the  legislature  of  a  Territory  to  pro- 
vide that  on  a  trial  of  a  common  law  action  the  court  may, 
in  addition  to  the  general  verdict,  require  specific  answers 
to  special  interrogatories,  and,  when  a  conflict  is  found 
between  the  two,  render  such  judgment  as  the  answers  to 

the  special  questions  compel. 

********** 

These  are  all  the  questions  in  the  case,  and,  finding  no 
error  in  the  record,  the  judgment  is 

Affirmed. 


534  Trial  Practice  [Chap.  13 


Section  3.     Argument   and   Instructions   as   to   Proper 

Answers. 

RYAN  V.  ROCKFORD  INSURANCE  COMPANY. 

Supreme  Court  of  Wisconsin.      1890, 
77  Wisconsin,  611. 

Cassoday,  J.  The  learned  counsel  for  the  defendant 
strenuously  contends  that  the  evidence  is  insufficient  to  sup- 
port the  general  verdict  or  any  of  the  special  findings  in 
favor  of  the  plaintiff.  The  view  we  have  taken  of  the  case 
renders  it  unnecessary  for  us  to  determine  that  question. 

The  statute  requires  the  court  to  direct  the  jury  to  find  a 
special  verdict  when  requested  as  prescribed.  Sec.  2858, 
R.  S.  Such  verdict  must  ''be  prepared  by  the  court  in  the 
form  of  questions  in  writing,  relating  only  to  material  is- 
sues of  fact  and  admitting  a  direct  answer,  to  which  the 
jury  shall  make  answer  in  writing.  The  court  may  also 
direct  the  jury,  if  they  render  a  general  verdict,  to  find  in 
writing  upon  any  particular  question  of  fact  to  he  stated  as 
aforesaid."  Ibid.  This  last  provision  is  applicable  to 
the  case  at  bar.  The  purpose  of  thus  submitting  particu- 
lar controverted  questions  of  fact  is  to  secure  a  direct  an- 
swer free  from  any  bias  or  prejudice  in  favor  of  or  against 
either  party.  It  is  a  wise  provision  in  certain  cases  when 
properly  administered.  It  has  often  been  demonstrated 
in  the  trial  of  causes  that  the  non-expert  juryman  is  more 
liable  than  the  experienced  lawyer  or  judge  to  be  led  away 
from  the  material  issues  of  fact  involved  by  some  collateral 
circumstance  of  little  or  no  significance,  or  by  sympathy, 
bias,  or  prejudice;  and  hence  it  is  common  practice  for 
courts,  in  the  submission  of  such  particular  questions  and 
special  verdicts,  to  charge  the  jury,  in  effect,  that  they  have 
nothing  to  do  with,  and  must  not  consider  the  effect  which 
their  answers  may  have  upon,  the  controversy,  or  the  par- 
ties. The  learned  trial  judge,  when  in  health,  has  fre- 
quently so  charged.  It  is  certainly  a  very  proper  thing  to 
do  when  the  ])usiiiess  or  reputation  of  either  party  is  such 
as  to  naturally  stimulate  a  bias  in  favor  of  the  one  party 
or  the  oilier.      It  is  true  tliat  jui-ies,  under  such  a  charge, 


Sec.  3]  Special  Inteeeogatoeies  535 

sometimes  return  inconsistent  answers ;  but  it  is  usually  be- 
cause such  is  the  honest  result  of  their  unbiased  judgment 
upon  different  branches  of  the  evidence. 

In  the  case  at  bar  the  learned  trial  judge  seems  to  have 
been  particularly  anxious  to  prevent  such  inconsistent  an- 
swers ;  and  hence  he  explained  to  the  jury  what  different  an- 
swers to  each  particular  question  so  submitted  would  be  con- 
sistent, and  what  inconsistent,  with  a  general  verdict  in 
favor  of  one  or  the  other  party.  This  was  peculiarly  cal- 
culated to  secure  special  answers  which  would  be  consistent 
with  a  general  verdict  rather  than  in  accordance  with  the 
weight  of  evidence  upon  each  of  such  particular  questions. 
The  effect  of  such  instructions  was  very  much  the  same  as 
though  the  court  had  charged  the  jury  that  after  they  had 
determined  upon  a  general  verdict  then  they  should  answer 
the  particular  questions  submitted  in  the  way  they  had  thus 
been  informed  would  be  consistent  with  such  general  ver- 
dict. This  was  misleading,  and  well  calculated  to  defeat 
the  very  object  of  the  statute  in  authorizing  such  submis- 
sion. 

By  the  Court. — The  judgment  of  the  circuit  court  is  re- 
versed, and  the  cause  is  remanded  for  a  new  trial. 


CHICAGO  &  ALTON  RAILROAD  COMPANY  V.  GORE. 

Supreme  Court  of  Illinois.      1903. 

202  Illinois,  188. 

Mr.  Justice  Boggs  delivered  the  opinion  of  the  court. 

********** 

We  do  not  conceive  that  it  was  improper  practice  to  per- 
mit counsel  for  appellee  to  read  the  special  interrogatories 
to  the  jury,  and  in  connection  therewith  discuss  the  evi- 
dence, for  the  purpose  of  convincing  the  jury  that  under  the 
evidence  the  interrogatories  should  be  answered  in  the  af- 
firmative or  in  the  negative,  as  the  case  might  be.  The  ob- 
jection is  not  that  the  avgiinieut  of  counsel  appealed  to  the 
prejudice  of  the  jurors  or  to  their  sympathies,  or  that  it 


536  Trial  Practice  [Chap.  13 

transcended  legitimate  grounds  of  debate,  but  simply  that 
it  was  error  to  allow  counsel  to  read  the  interrogatories  to 
the  jury  and  discuss  the  evidence  which  bore  upon  the  an- 
swers which  counsel  conceived  should  be  made  by  the  jury 
thereto.  The  statute  which  authorizes  the  submission  of 
special  questions  of  fact  to  be  answered  by  a  jury  requires 
that  such  questions  shall  be  stated  to  the  jury  in  writing, 
and  ' '  shall  be  submitted  by  the  party  requesting  the  same, 
to  the  adverse  party  before  the  commencement  of  the  argu- 
ment to  the  jury."  The  end  designed  to  be  attained  by  the 
argument  of  counsel  is  to  lead  the  jury  to  the  proper  de- 
cision of  or  answer  to  the  issues  made  by  the  pleadings.  It 
was  entirely  legitimate  for  counsel  to  review  the  evidenc 
and  suggest  to  the  jury  what,  under  the  proof,  their  general 
verdict  should  be,  and  none  the  less  to  suggest  the  answers 
which,  in  the  view  of  counsel,  the  evidence  demanded  should 
be  returned  to  the  special  interrogatories.  In  Timins  v. 
Chicago,  etc.,  Railroad  Co.,  72  Iowa,  94,  it  was  said:  "It 
is  competent  for  an  attorney  to  read  special  interrogatories 
to  the  jury,  and  to  discuss  the  evidence  applicable  thereto, 
and  to  suggest  the  answers  which  in  his  judgment  ought  to 
be  rendered." 

The  judgment  of  the  Appellate  Court  must  be  and  is 
affirmed. 

Judgment  affirmed. 


CAPITAL  CITY  BANK  V.  WAKEFIELD. 

Supreme  Court  of  Iowa.      1891. 
83  Iowa.  46. 

ItIVEN,    J. 

IV.  At  the  conclusion  of  the  instructions  the  court  sub- 
mitted the  three  special  interrogatories,  with  this  instruc- 
tion. "You  will  decide  upon  them  in  the  same  manner  as 
your  general  verdict,  and  answer  the  same.  You  will  be 
careful,  however,  that  these  answers  are  in  harmony  with 
and  suj)port  your  general  verdict."      The  appellant  con- 


Sec.  3]  Special  Inteekogatoeies  537 

tends  that  this  instruction  ' '  requires  the  jury  to  answer  the 
interrogatories,  not  with  reference  to  the  facts  of  the  case 
as  shown  by  the  evidence,  but  with  reference  to  their  gen- 
eral verdict  only."  That  the  findings  and  verdict  should 
be  in  harmony  is  not  questioned,  nor  that  the  court  may  in- 
struct the  jury  to  exercise  care  in  that  respect.  Special 
findings  are  of  ultimate  material  facts  only,  and,  when 
found,  the  result — the  general  verdict — follows  therefrom. 
It  is  clear  that  a  jury  should  first  decide  from  the  evidence 
what  the  ultimate  facts  are;  that  is,  the  essential  facts 
which  control  as  to  what  the  verdict  should  be.  With  these 
facts  found,  they  should  then  decide  to  what  result — what 
general  verdict — they  lead.  The  jury  were  sworn  to  de- 
cide the  case  according  to  the  law  as  given  by  the  court,  and 
the  evidence.  The  general  tenor  of  previous  instructions 
is  that  they  should  decide  the  case  upon  the  evidence,  and 
then  they  were  specifically  told  that  they  must  decide  upon 
these  special  questions  in  the  same  manner  as  their  general 
verdict.  Thus  far  the  jury  could  be  in  no  doubt  but  that 
they  were  to  decide  the  special  questions  from  the  evidence. 
The  caution  which  follows  could  not  lead  to  a  different  con- 
clusion. True,  it  would  have  been  more  exactly  correct  if 
it  had  cautioned  them  to  be  careful  that  their  general  ver- 
dict was  in  harmony  with  the  answers,  as  the  answers  con- 
trol ;  but  we  do  not  think,  in  view  of  what  preceded,  that  the 
jury  could  have  understood  that  they  were  to  decide  upon 
their  answers  to  the  special  interrogatories  from  anything 
but  the  evidence.  People  v.  Murray,  52  Mich.  289;  17  N. 
W.  Rep.  843. 

Our  conclusion  upon  the  whole  record  is  that  the  judg- 
ment of  the  district  court  should  be  affirmed. 


538  Trial  Practice  [Chap.  13 


COFFEYVILLE  VITRIFIED  BRICK  COMPANY 
V.  ZIMMERMAN. 

Supreme  Court  of  Kansas.      1900. 

61  Kansas,  750. 

The  opinion  of  the  court  was  delivered  by 

Smith,  J. :  This  was  an  action  for  damages  by  the  plain- 
tiffs below,  the  father  and  mother  of  Arthur  Zimmerman, 
who  was  killed  by  the  falling  of  an  embankment  under  which 
he  was  at  work  while  in  the  employ  of  plaintiff  in  error. 
The  action  was  brought  under  section  418,  chapter  95,  Gen- 
eral Statutes  of  1897  (Gen.  Stat.  1899,  Sec.  4686),  and  there 
was  a  verdict  and  judgment  for  plaintiffs.  One  of  the  in- 
structions given  by  the  court  to  the  jury,  over  the  objection 
of  plaintiff  in  error,  was  as  follows : 

''Your  answers  and  findings  should  be  consistent  each 
with  the  other,  and  should  be  consistent  with  the  general 
verdict,  in  order  that  any  amount,  if  any  you  find  in  favor 
of  the  plaintiff,  must  be  consistent  and  in  harmony  with 
the  answers  that  you  make  to  these  special  questions. 
Whatever  verdict  may  be  returned  in  this  case,  if  not  for 
the  defendant,  it  is  largely  upon  the  answers  you  make  to 
these  questions,  and  they  should  be  consistent  each  with  the 
other. ' ' 

It  was  clearly  erroneous  for  the  court  to  require  the  jury 
to  make  their  answers  to  the  particular  questions  of  fact 
harmonize  with  the  general  verdict,  or  to  suggest  that  the 
findings  should  be  consistent  each  with  the  other.  Each  of 
he  questions  propounded  should  be  answered  truthfully,  in 
accordance  with  the  preponderance  of  evidence  upon  the 
question  submitted.  Under  our  statute,  when  the  special 
finding  of  facts  is  inconsistent  with  the  general  verdict,  the 
former  controls  the  latter,  and  the  court  may  give  judgment 
acoordingly.  (Gen.  Stat.  1897,  ch.  95,  §297;  Gen.'  Stat. 
1899,  §  4550.)  The  questions  should  be  answered  without 
anv  reference  to  their  effect  on  the  general  verdict.  (Dry 
Goods  Co.  V.  Kahn,  53  Kan.  274,  36  Pac.  327.) 

For  the  error  in  the  instruction  given,  the  judgment  of 
the  court  below  will  be  reversed  and  a  new  trial  ordered. 


Sec.  4]        Special  Interrogatories  539 


Section  4.  Form  of  Interrogatories. 

LOUISVILLE,  NEW  ALBANY  &  CHICAGO  EAILWAY 
COMPANY  V.  WORLEY. 

Supreme  Court  of  Indiana.       1886. 

107  Indiana,  320. 

Elliott^  J.  *    *    * 

********** 

The  appellant  submitted  to  tlie  court  interrogatories,  and 
asked  that  they  should  be  submitted  to  the  jury,  but  the 
court,  instead  of  submitting  those  asked  by  the  appellant, 
prepared  and  submitted  interrogatories  of  its  own.  The 
prayer  for  the  submission  of  the  interrogatories  to  the  jury 
was  not  a  proper  one,  for  the  court  was  not  asked  to  in- 
struct the  jury  to  answer  the  interrogatories  in  the  event 
that  they  returned  a  general  verdict.  Taylor  v.  Bruk, 
91  Ind.  252. 

We  have,  however,  examined  the  interrogatories,  and 
find  that  those  propounded  by  the  court  substantially  cov- 
ered those  asked  by  the  appellant,  so  far  as  they  were  com- 
petent and  material.  Our  decisions  are  that  it  is  proper 
for  the  trial  court  to  revise  interrogatories  submitted  by  the 
parties,  and  to  prepare  and  propound  for  itself  proper  in- 
terrogatories to  the  jury.  Killian  v.  Eigenmann,  57  Ind. 
480. 

The  'Court  submitted  this  interrogatory.  ''Could  the  de- 
fendant have  lawfully  fenced  its  track  at  the  point  where 
said  mules  entered  upon  the  track?"  It  is  contended  that 
this  interrogatory  is  not  a  proper  one,  as  it  calls  upon  the 
jury  to  decide  a  question  of  law,  and  not  of  fact,  and  thus 
casts  upon  them  a  duty  that  the  court  should  perform.  We 
can  perceive  no  answer  to  this  contention,  and  appellee's 
counsel  have  not  suggested  any.  Our  statute  makes  it  the 
duty  of  the  court  to  submit  to  the  jury  only  questions  of 
fact,  and  the  question  here  submitted  is,  it  seems  to  us,  one 
of  law.  The  purpose  of  addressing  interrogatories  to 
juries  is  to  elicit  de<;isions  upon  matters  of  fact,  and  not  to 
ask  them  to  state  conclusions  of  law.  Whether  the  track 
of  a  railroad  company  is,  or  is  not,  lawfully  fenced,  is  a  mere 


540  Tkial  Practice  [Chap.  13 

conclusion  to  be  deduced  from  the  facts.  We  have  re- 
peatedly decided  that  parties  are  entitled  in  special  verdicts 
and  in  special  findings  to  a  statement  of  the  specific  facts, 
and  that  statements  of  mere  conclusions  will  not  be  suffi- 
cient. Pittshurg,  etc.,  R.  R.  Co.  v.  Spencer,  98  Ind.  186, 
and  authorities  cited;  Louisville,  etc.,  R.  W.  Co.  v.  Batch, 
105  Ind.  93 ;  Indianapolis,  etc.,  R.  W.  Co.  v.  Bush,  101  Ind. 
582 ;  Pittsburgh,  etc.,  R.  W.  Co.  v.  Adams,  105  Ind.  151. 

That  principle  governs  here.  The  jury  should  be  re- 
quired to  state  facts,  and  not  conclusions  of  law,  and  the  an- 
swer to  the  question  propounded  in  this  instance  could  be,  as 
it  was,  nothing  more  than  the  statement  of  the  jury's  con- 
clusion as  to  whether  the  railroad  company  could  lawfully 
fence  its  track  at  the  place  where  the  mules  entered  upon  it. 
Whether  it  could  lawfully  fence  at  that  place  depended  upon 
the  character  and  surroundings,  and  when  these  are  fixed 
the  question  whether  it  could  be  lawfully  fenced  becomes 
one  of  law  for  the  decision  of  the  court.  There  are  many 
facts  which  make  it  improper  for  a  railroad  company  to 
fence,  as,  for  instance,  the  fact  that  to  fence  would  inter- 
fere with  the  discharge  of  the  company's  duty  to  tlie  public, 
or  would  make  the  place  dangerous  to  its  servants,  and  it 
is  for  the  jury  to  state  the  facts,  leaving  the  law  to  be  ap- 
plied by  the  court  to  the  facts  found  by  the  jury. 

It  was  held  in  the  case  of  Jeffersonville  etc.,  R.  R.  Co.  v. 
Underhill,  40  Ind.  229,  that  an  allegation  that  the  railroad 
was  ''not  fenced  according  to  law,"  was  the  statement  of 
a  legal  conclusion,  and  this  general  principle  is  declared  in 
many  cases.  Indianapolis,  etc.,  R.  R.  Co.  v.  Bishop,  29  Ind. 
202;  Indianapolis,  etc.,  R.  R.  Co.  v.  Robinson,  35  Ind.  380; 
Pittsburgh,  etc.,  R.  R.  Co.  v.  Brown,  44  Ind.  409;  Singer 
Manufacturing  Co.  v.  E finger,  79  Ind.  264. 

We  think  it  clear  on  principle  and  authority  that  the  court 
erred  in  ;  iilimitting  the  interrogatory  under  immediate 
mention  to  the  jury.  In  view  of  the  fact  that  the  court  re- 
jected interrogatories  submitted  by  the  appellant,  and  un- 
dertook to  substitute  those  of  its  own,  the  error  must  be  re- 
garded as  a  material  one.  It  would  defeat  the  manifest 
purpose  of  the  statute  to  allow  conclusions  of  law,  rather 
than  statements  of  facts,  to  be  made  by  the  jury,  for  the 
purpose  of  the  statute  is  to  get  upon  record  the  specific  and 


Sec.  4]  Special  Interrogatokies  541 

material  facts  in  the  form  of  answers  to  interrogatories. 

Judgment  reversed. 


CHICAGO  &  ALTON  KAILROAD  COMPANY 
V.  HARRINGTON. 

Supreme  Court  of  Illinois.      1901. 

192  Illinois,  9. 

The  East  St.  Louis  freight  yard  of  the  Toledo,  St.  Louis 
and  Kansas  City  railroad,  (^commonly  called  the  *' Clover 
Leaf,")  is  what  is  called  a  stub-yard,  and  the  only  way  of 
getting  into  and  from  the  yard  with  cars  is  from  the  east 
end  of  it.  A  main  or  lead  track  runs  from  the  east  end  of 
the  yard  to  the  freight  house  at  the  west  end.  From  this 
main  or  lead  track  a  number  of  switches  branch  off  wester- 
ly, on  which  are  received  freight  cars  coming  from  other 
roads,  at  all  hours  of  the  day  and  night.  The  switch 
tracks  are  connected  with  the  main  or  lead  track  by 
switches. 

On  January  27,  1897,  early  in  the  morning,  and  while  it 
was  yet  dark  and  was  snowing,  a  switch  crew  of  the  appel- 
lant company  transferred  a  number  of  cars  of  perishable 
freight  from  appellant's  road  to  a  switch  track  of  the  Clov- 
er Leaf  road,  and,  in  doing  so,  omitted  to  place  the  cars  a 
sufificient  distance  down  the  switch  track  to  allow  a  lO'Como- 
tive  and  cars  to  pass  along  the  lead  track  without  coming  in 
contact  with  the  last  car  so  placed  on  the  switch  track,  and 
also  omitted  to  close  the  switch,  but  left  it  open. 

Several  hours  before  the  servants  of  the  appellant  com- 
pany had  thus  transferred  its  cars  to  a  switch  track  of  the 
Clover  Leaf  road,  a  switching  crew  of  the  Clover  Leaf  road 
had  gone  out  of  the  yard  up  to  Madison,  or  Miller's  Station, 
to  take  some  cars,  and  returned  to  the  freight  yard  of  the 
Clover  Leaf  road  after  appellant's  switching  crew  had  fin- 
ished their  work  and  left  the  yard.  The  switching  crew  of 
the  Clover  Leaf  road,  which  thus  entered  the  freight  yard 
between  four  and  six  o'clock  on  the  morning  of  January  27, 
1897,  consisted  of  five  men.      Of  these  five  men  one  was  the 


542  Trial  Peactice  [Chap.  13 

fireman  and  one  was  the  engineer.  Besides  the  fireman 
and  engineer  there  was  a  foreman  and  there  were  also  two 
helpers.  Appellee  was  one  of  these  helpers.  When  the 
switching  crew  of  the  Clover  Leaf  road  come  down  the  lead 
track,  two  freight  cars  were  fastened  to  the  locomotive 
ahead  of  it,  so  that  the  two  freight  cars  were  pushed  for- 
ward by  the  locomotive.  When  the  switching  crew  en- 
tered the  freight  yard,  the  engineer  and  fireman  were  in 
their  proper  places  upon  the  locomotive.  The  foreman  was 
in  the  cab  of  the  engine.  One  of  the  helpers  was  on  top  of 
the  forward  car  of  the  two  cars  which  were  pushed  by  the 
engine.  Appellee,  the  other  helper,  was  standing  upon  the 
foot-board  in  front  of  the  engine  and  between  the  engine 
and  the  second  or  last  of  the  two  cars.  The  engineer  was 
named  Neff.  The  fireman  was  named  Thomas  or  Thompson. 
The  foreman  was  named  Donahue.  The  helper  on  the 
forward  car  was  named  Fox.  They  were  shoving  the  two 
cars  westward  to  the  freight  house,  and  it  was  the  intention 
to  cut  the  cars  off  and  leave  them. 

Wlien  the  servants  of  the  appellant  transferred  appel- 
lant's cars,  containing  perishable  freight,  from  appellant's 
road  to  one  of  the  switchtracks  of  the  Clover  Leaf  road  in 
the  freight  yard  of  the  latter,  they  left  the  switch  open,  and 
the  hindmost  of  appellant's  cars  projected  over  from  the 
side  switch,  upon  which  said  cars  stood,  on  to  the  main  or 
lead  track.  The  result  was  that,  when  the  engine  and  the 
two  cars  ahead  of  it,  which  the  switching  crew  of  the  Clover 
Leaf  road  were  pushing,  reached  the  switch  track  on  which 
appellant's  servants  had  left  its  cars,  the  cars,  so  pushed 
by  the  Clover  Leaf  switching  crew,  ran  into  and  collided 
with  appellant's  cars.  The  result  of  this  collision  was  that 
the  locomotive,  on  the  front  foot-board  of  which  appellee 
was  riding,  and  the  rear  car  of  the  two  cars  in  front  of  the 
locomotive,  came  together,  breaking  appellee's  legs,  tearing 
off  a  finger,  and  otherwise  severely  injuring  him. 

The  negligence,  charged  in  the  declaration  against  the 
servants  of  appellant,  was  that  they  left  the  cars,  contain- 
ing perishable  freight,  on  the  switch  track,  and  neglected  to 

close  the  switch. 

********** 

Mr.  Justice  Magruder  delivered  the  opinion  of  the  court. 


Sec.  4]  Special  Intereogatoeies  543 

Fourth — An  objection  is  also  made  by  appellant  to  the 
action  taken  by  tlie  trial  court  in  reference  to  tbe  special  in- 
terrogatories submitted  to  the  jury,  calling  for  special  find- 
ings upon  their  part. 

In  the  first  place,  the  court  declined  to  give  the  interroga- 
tories submitted  by  appellant,  and  prepared  interrogatories 
of  its  own  motion,  which  were  submitted.  This  was  not 
error;  we  have  decided  that  a  trial  court  may  refuse  re- 
quests for  special  findings,  and  substitute  others  on  its  own 
motion.  {Chicago  <f  Alton  Railroad  Co.  v.  Pearson,  184 
111.  386;  Norton  v.  VoMe,  158  id.  402). 

By  the  first  interrogatory  submitted  by  appellant,  the 
jury  were  asked  whether  it  would  not  have  been  safer,  if 
appellee  had  placed  himself  on  the  rear  foot-board  of  the 
engine  on  the  night  in  question,  as  the  train  was  entering 
the  yard  of  the  Clover  Leaf.  This  interrogatory  was  prop- 
erly refused,  because  an  affirmative  answer  to  it  could  not 
have  controlled  a  general  verdict  had  it  been  in  favor  of 
appellee.  (Chicago  d  Northive stern  Bailway  Co.,  C.  Ditn- 
leavy,  129  111.  l.'^S).  The  second  interrogatory,  which  re- 
quired the  jury  to  find  whether  *'the  act  of  plaintitf,  in 
negligently  placing  himself  on  the  foot-board  of  the  engine 
next  to  the  car,"  contributed  to  cause  the  injurj^  was  prop- 
erly refused  because  it  assumed  that  appellee  was  negli- 
gent. The  third  interrogatory  which  required  the  jury 
to  find  whether  the  accident  to  the  plaintiff  was  caused  by 
the  negligence  of  one  Fox,  who  was  on  the  first  car  of  the 
train,  was  properly  refused,  because  it  called  for  an  eviden- 
tiary fact  only,  and  so,  could  not  have  controlled 
a  general  verdict  for  appellee.  Upon  this  sub- 
ject the  Appellate  Court  in  deciding  this  case  well 
say:  ''Although  Fox  and  appellee  were  fellow-ser- 
vants of  a  common  master,  and  engaged  in  the  same 
line  of  duty,  yet  that  master,  was  not  appellant;  hence  the 
fact,  that  they  were  fellow-servants,  could  not  be  availed  of 
by  appellant  to  protect  itself  against  the  negligence  of  Fox, 
if  appellant's  negligence  contributed  to  the  injury.  If  the 
inquiry  had  been  whether  the  negligeu'ce  of  Fox  was  the  sole 
cause  of  the  injury,  the  condition  of  the  matter  would  have 
been  different  from  what  it  now  is.  Although  the  negli- 
gence of  Fox  might  have  caused  the  injury,  yet  the  negli- 
gence of  the-servants  of  appellant  might  also  have  contrib- 


544  Trial  Practice  [Chap,  13 

uted  to  the  injury,  and  an  affirmative  answer,  tliat  did  not 
fully  negative  the  latter,  would  have  established  an  eviden- 
tiary fact  only.  The  reasons  given,  wh}^  the  court  did  not 
err  in  refusing  to  give  the  third  interrogatory,  apply  as 
well  to  the  fourth  interrogatory. ' ' 

The  interrogatories  submitted  by  the  court  of  its  own  mo- 
tion, were  as  follows : 

''1st.  If  you  find  a  general  verdict  for  the  plaintiff  in 
this  case,  you  will  also  answer  and  return  with  your  verdict 
the  following  questions : 

' '  Did  the  act  of  the  plaintiff,  John  Harrington,  in  placing 
liimself  on  the  foot-board  of  the  engine  next  to  the  car  con- 
tribute to  cause  the  injury  he  received? 

"2nd.  Was  the  plaintiff,  John  Harrington,  using  proper 
care  for  his  own  safety  by  being  upon  the  foot-board  of  the 
engine  between  the  car  and  the  engine  when  he  was  in- 
jured?" 

The  jury  answered  "No"  to  the  first  interrogatory,  and 
"Yes"  to  the  second.  As  is  stated  by  the  Appellate  Court, 
the  two  interrogatories,  submitted  by  the  court  of  its  own 
motion,  contained  all  that  was  important  in  the  fifth  and 
sixth  interrogatories  asked  by  the  appellant,  and,  hence, 
no  error  was  committed  in  refusing  to  submit  the  latter  to 
the  jury. 

The  main  ground,  however,  upon  which  the  appellant 
charges  that  the  interrogatories  submitted  by  the  court  on 
its  own  motion  were  erroneous,  is  that  they  began  with  this 
statement:  "If  you  find  a  general  verdict  for  the  plaintiff 
in  this  case."  The  contention  is  that  it  was  erroneous  to 
put  the  words,  "for  the  plaintiff," 'after  the  words,  "gen- 
eral verdict."  It  would  have  been  better  if  the  court  had 
left  out  the  words  "for  the  plaintiff:"  but  their  insertion 
could  not  have  done  appellant  any  harm. 

Tlie  third  section  of  the  act  in  regard  to  special  findings 
and  special  verdicts,  provides  that,  when  a  special  finding 
of  fact  is  inconsistent  with  the  general  verdict,  the  former 
shall  'Control ;  and  we  said  in  Chicago  S  Northwestern  Rail- 
loay  Co.  V.  Dimleavy,  supra  (p.  144) :  "This  necessarily 
implies  that  the  fact  to  be  submitted  shall  be  one  which,  if 
found,  may  in  its  nature  be  controlling.  That  can  never  be 
the -case  with  a  mere  evidentiarv  fnct.  *  *  *  Such  incon- 
sistency can  arise  only  where  the  fact  found  is  an  ultimate 


Sec.  4]  Special  Interrogatories  545 

fact,  or  one  from  which  the  existence  or  non-existence  of  such 
ultimate  fact  necessarily  follows,  and  that  is  never  the  case 
with  that  which  is  only  prima  facie  evidence  of  the  fact 
sought  to  be  proved."  In  Chicago  &  Nortliivestern  Rail- 
ivay  Co.  V.  Dunleavy,  supra,  we  also  said  that  an  error  com- 
mitted in  the  giving  of  specific  interrogatories,  or  in  the 
answers  of  the  jury  to  the  same,  cannot  be  regarded  as  be- 
ing prejudicial  to  the  defendant,  "unless  it  can  be  seen  that 
answers  to  said  questions  most  favorable  to  the  defendant, 
which  of  course  would  have  been  answers  in  the  negative, 
would  have  constituted  a  finding  inconsistent  with  the  gen- 
eral verdict."  Interrogatories  asked  by  the  defendant  are 
framed  for  the  purpose  of  controlling  any  general  verdict 
that  may  be  returned  for  the  plaintiff.  In  the  case  at  bar, 
the  answers,  which  might  be  given  to  the  interrogatories 
framed  by  the  court,  might  have  had  the  effect  of  controll- 
ing a  general  verdict  for  the  plaintiff,  but  could  have  had  no 
effect  in  controlling  a  general  verdict  for  the  defendant. 
If  the  jury  had  answered,  that  the  act  of  the  plaintiff,  John 
Harrington,  in  placing  himself  on  the  foot-board  of  the  en- 
gine next  to  the  car,  did  contribute  to  cause  the  injury  he 
received,  and  if  they  had  answered  that  the  plaintiff  was  not 
usino"  proper  care  for  his  own  safety  by  being  upon  the  foot- 
board of  the  engine  between  the  car  and  the  enarine,  then  the 
special  finding  would  have  been  inconsistent  with  the  gen- 
eral verdict  in  favor  of  the  plaintiff,  and  such  general  ver- 
dict would  have  been  controlled  bv  the  special  findine;.  But, 
in  case  of  a  oreneral  verdict  for  the  defendant,  an  affirmative 
answer  to  the  first  interrogatorv  framed  bv  the  court,  and 
a  negative  ans-^^er  to  the  second  interrogatorv  framed  by 
the  court,  would  have  been  consistent  with  such  s'eneral  ver- 
dict for  the  defpndant.  and  not  inconsistent  with  it.  If.  in 
case  of  a  general  verdict  for  the  defendant,  the  first  in- 
terrojratorv  had  been  answered  in  the  nep-nh'vp  and  the 
second  in  the  a^rmative.  it  mav  not  have  affected  the  o:en- 
eral  verdict  in  favor  of  the  defendant,  because  the  evidence 
mav  have  shown  that  the  defendant  was  not  s"uiltv  of  neg- 
lio-enop.  and.  if  the  defprirlnnf  wa«  not  e:uiltv  of  neelisfence 
the  rtlaintiff  was  not  entitled  to  re?ovpr  even  if  he  was  not 
p-niUx'  of  poritributorv  neglisTPnop.  The  infprrogatorips, 
on>.rv->i'ffod  bv  th p  court  were  docionpd  to  secure  a  special 
finding  as  to  certain  matters  which  might  supersede  the  gen- 

T.  P. — .^'^  - 


546  Trial  Practice  [Chap.  13 

eral  verdict,  if  the  verdict  should  be  for  the  plaintiff,  and 
it  was  not  improper  to  put  the  matter  to  the  jury  in  that 
way.  ''The  facts,  upon  which  a  jury  should  be  asked  to 
find  specially,  should  be  material  facts,  which,  if  found, 
would  be  controlling. "  {Chicago  S  Northwestern  Railway 
Co.  V.  Dunleavy,  supra;  Terre  Haute  d  Indianapolis  Rail- 
way Co.  V.  Voelker,  129  111.  540;  Pike  v.  City  of  Chicago, 
155  id.  656).  The  theories  of  appellant,  as  embodied  in 
the  special  interrogatories  submitted  by  it,  were  presented 
in  the  instructions  given  by  the  court. 

It  is  also  said  that  the  interrogatories  given  hj  the  court 
were  defective  in  limiting  the  exercise  of  due  care  to  the 
time  when  the  plaintiff  was  injured.  This  criticism  is 
without  force,  because  we  have  held  that  the  words  ' '  at  the 
time,"  when  used  in  an  instruction  in  such  cases,  refer  to 
the  whole  transaction  or  series  of  circumstances,  and  not  to 
the  precise  moment  when  the  injury  occurs.  Here,  the 
words  ''in  placing  himself  upon  the  foot-board  of  the  en- 
gine," etc.,  refer  to  the  circumstances  which  preceded  that 
act,  as  well  as  the  act  itself  of  standing  on  the  foot-board  of 
the  engine.  {Chicago  &  Alton  Railroad  Co.  v.  Fisher, 
141  111.  614;  Lake  Shore  &  Michigan  Southern  Railway  Co. 
V.  Ouska,  151  id.  238;  McNulta  v.  Lockridge,  137  id.  270; 
Lake  Shore  &  Michigan  Southern  Railway  Co.  v.  John- 
sen,  135  id.  653.) 

After  a  careful  examination  of  the  record,  we  are  unable 
to  discover  any  reason,  which  would  justify  us  in  reversing 
the  judgments  of  the  lower  courts  in  this  case. 

Accordingly,  the  judgment  of  the  Appellate  Court  is  af- 
firmed. 

Judgment  affirmed. 


Sec.  4]  Special  Inteerogatoeies  547 


ATCHISON,  TOPEKA  &  SANTA  FE  RAILROAD 
COMPANY  V.  AYERS. 

Supreme  Court  of  Kansas.      1895. 

56  Kansas,  176. 

The  opinion  of  the  court  was  delivered  by 

Maetin,  C.  J. :  I.  The  original  action  was  brought  by  the 
defendant  in  error  against  the  plaintiff  in  error  to  recover 
damages  for  the  alleged  negligent  burning  of  a  grain  ele- 
vator, a  hay  press,  some  baled  and  a  quantity  of  loose  hay, 
and  other  property.        The  trial  resulted  in  a  verdict  and 

judgment  for  the  plaintiff.  *     *     * 

********** 

II.  The  defendant  pleaded  and  largelj^  relied  upon  the 
contributory  negligence  of  the  plaintiff  as  a  defense,  such 
negligence  arising  from  permitting  dry  hay  to  accumulate 
around  the  building  in  large  quantities,  extending  therefrom 
to  the  tracks  of  the  company,  so  as  readily  to  catch  fire  from 
sparks  emitted  from  the  locomotive  when  properly  man- 
aged. A  great  deal  of  the  evidence  related  to  the  condition 
of  the  building  and  the  premises  around  it,  the  same  being 
used  for  the  baling  of  hay  and  the  storing  of  the  same,  both 
baled  and  loose.  The  defendant  submitted  10  particular 
questions  of  fact  in  relation  to  the  condition  of  different 
parts  of  the  premises,  three  questions  pertaining  to  the  age 
of  different  parts  of  the  building,  and  one  as  to  the  same 
never  having  been  painted.  The  first  10  questions  were 
objectionable  in  form.  No.  1  being  as  follows:  "Is  it  not  a 
fact  that  the  fire  caught  in  the  dry  grass  and  rubbish  that 
had  accumulated  near  the  northeast  corner  of  the  build- 
ing?" instead  of  directly  asking  the  jury  "Did  the  fire  catch 
in  the  dry  grass,"  etc.  Questions  in  a  negative  or  a  lead- 
ing form  should  never  be  submitted,  and  these  were  both 
leading  and  negative,  and  any  direct  answer  to  them  by  yes 
or  no  was  liable  to  be  misunderstood.  The  court  refused 
to  submit  the  14  questions  referred  to,  and  was  proceeding 
to  state  the  reasons  therefor,  when  defendant's  counsel  ob- 
jected to  any  argument  in  the  presence  of  the  jury,  but  this 
was  overruled,  the  defendant  excepting,  and  the  court,  re- 
ferring to  the  first  10  questions,  said,  among  other  things : 


548  Teial  Practice  [Chap.  13 

''Suppose  these  questions  should  be  answered  as  the  de- 
fense asks  that  they  should  be  answered — that  this  com- 
bustible material  was  scattered  around  there — it  does  not 
show  that  the  plaintiff  was  guilty  of  negligence.  *  *  *  it 
gives  no  light  to  the  court  or  any  reviewing  court."  We 
regard  the  remark  as  improper  in  the  presence  of  the  jury. 
It  was  a  statement  as  a  proposition  of  law  that  the  scatter- 
ing of  combustible  material  upon  and  over  the  plaintiff's 
premises  was  not  negligence.  That  was  one  of  the  prin- 
ciple questions  to  be  submitted  to  the  jury,  and  they  would 
be  very  liable  to  interpret  this  remark  of  the  judge  as  a  de- 
claration that  all  the  evidence  as  to  the  existence  of  com- 
bustible matter  around  and  about  the  premises  was  imma- 
terial. The  first  10  questions  seem  quite  pertinent  to  the 
issue,  although  the  answers  to  them  in  the  manner  most 
favorable  to  the  defendant  may  not  have  been  sufficient 
alone  to  overthrow  a  verdict  in  favor  of  the  plaintiff.  We 
do  not  understand  this,  however,  to  be  the  test  of  the  com- 
petency of  particular  questions  of  fact  requested.  If  the 
questions  are  plain  and  direct  in  form,  are  within  the  is- 
sues, are  not  repetitions,  and  there  is  evidence  upon  which 
they  may  be  intelligently  answered,  they  ought  to  be  sub- 
mitted, so  that  the  detailed  facts  may  appear  of  record ;  thus 
enabling  the  trial  court,  upon  further  proceedings,  or  a 
reviewing  court  afterward,  to  form  an  intelligent  judgment 
upon  the  particular  issues  sought  to  be  elucidated  by  the 
questions  and  answers.  It  would  have  been  proper  to  sub- 
mit the  other  four  questions,  for  they  were  remotely  within 
the  issues,  but  they  were  not  especially  material,  and  the 
refusal  of  the  court  to  submit  them  would  not  be  reversible 
error.  It  is  generally  error  to  refuse  to  submit  questions 
of  fact  drawn  in  proper  form,  material  to  the  case,  and 
based  upon  the  evidence.  Section  286  of  the  civil  code  has 
been  uniformly  held  to  grant  a  right  to  the  parties  to  have 
proper  questions  of  fact  submitted  to  the  jury.  (Bent  v. 
PhUhrick,  16  Kan.  190;  C.  B.  V.  P.  Bid.  Co.  v.  Hofham, 
22  id.  41  -^A.T.S  S.  F.  Bid.  Co.  v.  Plunkett,  25  id.  188,  198; 
City  of  Wtmdotte  v.  Gibson,  25  id.  236,  243;  W.  d  W.  Bid. 
Co.  V.  Fechheimer,  36  id.  45,  51 ;  Kansas  City  v.  Bradbury, 
45  id.  381 ,  388.)  Of  course,  it  is  the  duty  of  the  court  to  re- 
vise the  questions,  to  strike  out  or  amend  those  drawn  by 
the  attorneys  in  improper  form  or  equivocal  in  their  mean- 


Sec.  5]  Special  Interrogatoeies  549 

ing,  and  those  outside  of  or  immaterial  to  the  issues,  as  also 

such  as  are  not  based  upon  any  evidence  in  the  case.      {Mo. 

Pac.  Ely.  Co.  v.  Eolley,  30  Kan.  465,  472,  473.) 
********** 

The  judgment  must  be  reversed,  and  the  case  remanded 
for  a  new  trial. 
All  the  Justices  ^concurring. 


Section  5.  Compelling  Jury  to  Give  Direct  Answers. 

CLEVELAND,  COLUMBUS,  CINCINNATI  &  INDIAN- 
APOLIS EAILWAY  COMPANY  V.  ASBURY. 

Supreme  Court  of  Indiana.      1889. 

120  Indiana,  289. 

Berkshire,  J. — This  was  an  action  instituted  by  the  ap- 
})ellee  to  recover  damages  on  account  of  personal  injuries 
which  she  claims  to  have  sustained  because  of  the  fault  of 
the  appellant. 

The  appellant,  at  the  proper  time,  moved  the  court  to 
require  the  jury  to  retire  to  their  room  to  consider  further 
of  their  answers  to  interrogatories  numbered  4,  5,  6,  8,  and 
10,  submitted  to  them  at  the  request  of  the  appellant,  and 
to  return  definite,  certain,  and  direct  answers  thereto, 
which  motion  was  overruled,  and  an  exception  saved. 

These  interrogatories,  and  the  answers  thereto,  are  as 
follows : 

*'4.  Did  not  Daniel  Asbury,  the  owner  of  said  horse, 
hoar  the  whistle  of  the  approaching  train  while  driving  said 
horse  between  the  residence  of  Martha  Helms  and  the  cross- 
ing where  the  accident  occurred? 

'*  Answer.  We  do  not  know  by  the  evidence  that  it  was 
tlie  train  whistle. 

'*5.  Could  not  the  plaintiff  and  Daniel  Asbury  have  seen 
tlie  approaching  train,  or  the  head-light  of  its  locomotive, 
if  they  had  looked  from  a  point  on  said  highway  thirty-five 
feet  south  of  said  crossing,  in  time  to  have  averted  the  acci- 
dent? 

^'Ans.    We  don't  know. 


550  Teial  Peactice  [Chap  13 

''6.  From  a  point  thirty-five  feet  south  of  the  crossing 
where  the  accident  occurred  on  the  highway  or  street  along 
which  Asbury  drove,  how  far  from  said  crossing  could  the 
approaching  train  be  seen"? 

"Ans.     In  daylight  it  might  have  been  seen  a  mile. 

"8.  How  often  was  said  whistle  sounded  before  the  ac- 
cident as  said  train  approached  the  crossing? 

^'Ans.     We  don't  know  what  crossing  was  meant. 

"10.  Was  not  a  bell  attached  to  said  engine,  and  was 
not  said  bell  rung  continuously  from  said  tile-shed  crossing 
to  the  place  where  the  accident  occurred? 

"Ans.  There  was  a  bell  attached,  but  we  do  not  know 
that  it  was  rung  continuously." 

The  answers  to  these  interrogatories  were  evasive  and 
improper.  There  was  evideece  bearing  upon  every  fact 
covered  by  these  interrogatories,  and  the  jury  should  have 
answered  them  definitely  and  in  direct  language.  It  would 
have  been  no  more  improper  had  the  jury  returned  a  gen- 
eral verdict,  "We,  the  jury,  do  not  know  whether  we  ought 
to  find  for  the  plaintiff  or  defendant,"  than  to  have  returned 
the  answers  they  did  to  the  said  interrogatories ;  and  the 
court  should  have  declined  to  receive  the  answers  returned, 
as  it  would  have  declined  to  receive  a  general  verdict  in  the 
form  we  have  given,  upon  proper  objection  made. 

If  there  was  a  disagreement  among  the  members  of  the 
jury  as  to  the  answers  that  should  be  made  to  the  interroga- 
tories, or  if  the  evidence  was  such  that  they  could  not  find 
the  facts,  or  any  of  them,  to  which  the  interrogatories  re- 
lated, then  the  jury  should  have  so  informed  the  court,  and 
in  receiving  the  answers  as  made  the  court  committed  an 
error.  It  should  have  sustained  the  motion  of  the  appel- 
lant, and  required  the  jury  to  retire  and  return  proper  an- 
swers to  the  interrogatories,  or,  in  case  of  a  disagreement, 
to  so  inform  the  court.  There  seems  to  have  been  a  disin- 
clination on  the  part  of  the  jury  to  answer  the  interroga- 
tories; the  answer  to  the  eighth  especially  indicates  that: 
"How  often  was  said  wliistle  sounded  before  the  accident 
as  said  train  approached  the  crossing."  There  was  but 
one  crossing  in  question,  and  that  was  the  one  where  the  ac- 
cident happened,  and  tlie  jury  could  but  understand  that 
that  was  the  crossing  referred  to  in  the  interrogatory,  and 


Sec.  6]  Specul  Interrogatories  551 

yet  tliey   answer,   ''We   do   not   know   what    crossing    is 
meant." 

The  evidence  was  not  complicated,  and  there  was  very 
little  conflict,  if  any,  as  to  many  of  the  facts  inquired  for 
in  these  interrogatories,  and  especially  those  relating  to  the 
care  and  caution  exercised  by  the  appellee  and  her  husband. 
The  appellant  was  entitled  to  full  and  fair  answers  to  its  in- 
terrogatories. 

We  are  aware  of  the  rule  that  the  court  may  refuse  to  re- 
quire the  jury  to  retire  and  make  more  definite  answers  to 
interrogatories,  and  that  it  will  not  be  available  error  if  the 
answers  demanded  would  not,  if  given,  change  the  result  as 
to  the  judgment  to  be  rendered.  McCormick,  etc.,  Co.  v. 
Gray,  100  Ind.  285 ;  Chicago,  etc.,  R.  R.  Co.  v.  Hedges,  105 
Ind.  398.  But  had  the  interrogatories  under  consideration 
been  answered  in  the  affirmative,  they  would  have  con- 
trolled the  general  verdict. 

Affirmative  answers  to  these  interrogatories  would  have 
disclosed,  beyond  question,  contributory  negligence  on  the 
part  of  the  appellee  and  her  husband,  and  gone  far  in  the 
direction  of  establishing  due  care  on  the  part  of  the  appel- 
lant. 

********** 

Because  of  the  error  of  the  court  in  overruling  the  mo- 
tion to  require  the  jnry  to  retire  and  make  more  definite 
and  certain  the  answers  to  the  interrogatories,  the  judgment 
must  be  reversed. 

Judgment  reversed,  with  costs. 


Section  6.    Effect  of  Answers  on  General  Verdict. 

RUNYAN  V.  KANAWHA  WATER  &  LIGHT 
COMPANY. 

Supreme  Court  of  Appeals  of  West  Virginia.      1911. 

68  West  Virginia,  609. 

Action  by  C.  D.  Runyan,  administrator  of  Walter  Runyan, 
against  the  Kanawha  Water  &  Light  Company.      A  verdict 


552  Trial  Practice  [Chap  13 

for  plaintiff  having  been  set  aside,  he  brings  error. 
Brannon,  Judge: 
The  Kanawha  Water  &  Light  Company,  a  corporation 

'  irnishing  electricity  for  public  consumption  in  the  city  of 
harleston,  had  its  wires  on  a  bridge  over  the  Kanawha 
Iver  for  conveyance  of  electricity.  Walter  Runyan  was  an 
mploye  of  the  bridge  company  engaged  in  painting  the 
>ridge,  and  while  so  employed  came  in  contact  with  an  elec- 
ric  wire,  and  was  so  badly  burned  by  the  electricity  that  he 
'ied.  His  administrator  sued  the  Kanawha  Water  &  Light 
ompany,  and  recovered  a  verdict  for  $5000,  and  the  court 

'  aving  set  the  verdict  aside,  the  plaintiff  comes  to  this 

ourt. 

********** 

The  main  defense  in  the  case  is  contributory  negligence. 
The  general  verdict  finds  against  that  defence ;  but  def end- 
-mt  insists  that  that  verdict  is  overruled  by  a  finding  in  an- 
■^wer  to  an  interrogatory.  This  has  given  us  some  perplex- 
ity, and  is  the  question  of  gravity  in  the  case.  The  inter- 
rogatory is  this :  ' '  If  Walter  Runyan  had  been  careful,  con- 
sidering the  knowledge  he  had  of  the  wires,  would  he  have 
been  injured?"  The  answer  is,  ''We  think  not."  Is 
this  inconsistent  with  the  general  verdict  so  as  to  overrule 
it?  It  must  be  so  inconsistent  that  both  cannot  stand  to- 
gether. If  possible  they  must  be  construed  so  as  to  har- 
monize; or  rather,  as  applied  to  this  case,  we  must  be  able 
to  say  that  the  finding  finds  a  fact  which  inevitably  over- 
throws the  general  verdict.  It  must  ex'clude  every  conclu- 
sion that  would  authorize  a  verdict  for  plaintiff.  Peninsular 
Land  Co.  v.  Ins.  Co.,  35  W.  Va.  666.  As  a  practical  ques- 
tion in  this  case,  Does  this  finding  find  as  a  fact  that  Runyan 
was  guilty  of  contributory  negligence  defeating  the  action? 
If  it  does  not,  it  is  not  the  overthrow  of  the  general  verdict. 
It  does  not  find  facts  to  enable  the  court  to  say  whether  such 
contributory  negligence  was  a  fact.  This  consideration  at 
once  denies  this  finding  any  force  to  overthrow  the  general 
verdict.  This  interroo-ntorv  was  put  to  get  from  the  jury 
an  expression  to  sustain  the  charge  of  contributory  negli- 
gence. It  does  not  ask  the  jury  whether  such  and  such 
facts  exist,  facts  whirh  would  in  law  constitute  negligence, 
as  it  must.  The  law  is  that  an  interrogatory  must  put  only 
questions  of  fact  from  which  a  legal  proposition  may  be 


Sec.  61  Special  Intekrogatobies  553 

deduced.  What  facts  arising  on  the  evidence  does  this  in- 
terrogatory inquire  about?  The  interrogatory  must  ask 
as  to  facts  such  as,  if  answered  as  desired  by  the  inter- 
rogator, will  make  a  verdict  for  his  adversary  inconsistent. 
Any  question  the  answer  to  which  would  be  inconclusive, 
and  which  would  not  be  so  inconsistent,  should  not  be  put. 
20  Ency.  PL  &  Prac.  328.  "Questions  which  require  the 
jury  merelj'  to  answer  as  to  acts  or  omissions  which  may  or 
may  not  in  their  opinion  be  evidence  of  care  or  negligence, 
or  from  answers  to  which,  either  way,  the  court  cannot  say, 
as  a  matter  of  law,  whether  care  or  negligence  is  the  result, 
are  not  material."  Clementson  on  Special  Verdicts,  73. 
This  interrogatory,  without  specifying  facts  on  which  to 
base  the  opinion,  simply  asks  the  jury  whether  in  its  opin- 
ion Runyan  exercised  care.  Virtually  it  asks  the  jury 
whether  in  its  opinion  Runyan  was  guilty  of  contributory 
negligence,  a  mixed  ciuestion  of  law  and  fact,  I  may  say  of 
law.  Such  an  interrogatory  is  not  good.  The  failure  to 
ask  as  to  facts  on  which  carelessness,  or  in  other  words, 
contributory  negligence,  is  sought  to  be  predicated  is  a  fatal 
defect  in  this  interrogatory,  and  must  render  its  answer 
abortive.  The  answer  does  not  find  in  words  that  Runyan 
was  guilty  of  contributory  negligence,  and  could  not,  since 
a  question  calling  upon  a  jury  to  find  on  a  question  of  law 
must  not  be  submitted.  20  Ency.  PL  &  Prac.  326 ;  Clement- 
son  on  Special  Verdicts,  117,  217.  He  is  not  proven  negli- 
gent.     It  does  not  appear. 

But  take  the  question  and  answer  as  they  are.  This  find- 
ing says  that  if  Runyan  had  been  careful  he  would  not  have 
been  injured.  Does  this  come  up  to  the  standard  of  full 
contributory  negligence?  No.  It  does  not  tell  in  what 
he  was  careless,  or  to  what  degree.  Runyan  having  a  right 
to  be  where  he  was  in  work,  he  could  go  near  or  over  the 
wires,  unless  he  knew  that  there  was  positive  actual  danger 
staring  him  in  the  face.  If  he  by  accident  fell  upon  or  caught 
his  foot  in  the  wires,  this  would  not  bar  recovery.  He 
might  not  have  used  the  highest  degree  of  care  and  yet  not 
be  found  guilty  of  contributory  negligence  defeating  the  ac- 
tion. We  cannot  see  what  was  the  extent  of  his  knowledge 
of  danger,  whether  or  not  he  knew  of  defects  in  insula- 
tion. He  was  called  on  to  use  only  ordinary  care  required  of 
a  prudent  man  under  the  circumstances;  but  this  finding 


554  Trial  Practice  [Chap  13 

does  not  indicate  what  care  or  carelessness  he  used.  We  can- 
not from  the  finding  say,  or  guess,  whether  he  exercised  the 
only  care  required  by  law,  ordinary,  or  was  chargeable  with 
gross  negligence.      In  the  one  case  he  would  not  be  guilt' 
of  contributory  negligence  defeating  the  action;  in  the  othe 
he  would.      We  cannot  say  which  from  the  question  and  an 
swer.       The  main  verdict  finds  no  negligence,  and  we  arv. 
asked  to  say  from  the  special  finding  that  there  was;  and 
thus  make  the  special  finding  inconsistent  with  the  main 
verdict,  when  the  special  one  does  not  give  facts  which,  in 
law,  impute  contributory  negligence. 

There  is  another  defective  feature  of  this  finding  to  show 
its  inadequacy  to  overcome  the  general  verdict.  It  is  in 
the  inconclusive  language,  ''We  think  not."  "Answers 
expressing  only  the  inclination  of  the  minds  of  the  jury,  as 
to  say,  'We  think  not'  are  insufficient  and  too  uncertain  to 
base  a  judgment  on."  Hopkins  v.  Stacey,  43  Ind.  554. 
Eminent  authority  there  cited  says,  "An  opinion  is  not  a 
legal  verdict,  and  verdicts  must  be  positive,  certain  and 
free  from  all  ambiguity."  This  position  may  be  assailed 
as  technical ;  but  remember  that  special  finding,  to  overcome 
general  verdicts  must  be  certain  and  clearly  and  plainly  in- 
consistent with  it.  I  grant  that  there  are  authorities  hold- 
ing otherwise.  20  Ency.  PI.  &  Prac.  344.  I  cannot  say 
that  I  would  for  this  defect  alone  reject  the  answer;  still 
it  must  be  said  that  the  answer  is  indefinite  and  leaves  the 
mind  in  doubt  whether  the  jury  intended  to  find  a  definite 
fact.  Why  did  it  not  say  "No,"  if  so  intended?  The 
law  says  that  answers  to  interrogatories  should  be  "direct, 
definite,  certain  and  complete."      20  Ency.  PI.  &  Prac.  342. 

Again  this  question  10  called  upon  the  jury  to  say  whether 
if  Runyan  had  been  careful  he  would  have  been  hurt.  "Only 
such  questions  as  can  be  fairly  and  intelligently  answered 
should  be  submitted.  Interrogatories  requiring  the  jury  to 
speculate  as  to  what  might  have  happened  in  a  certain  con- 
tingency should  not  be  submitted."  Atchison  dc.  v.  Lan- 
nigan,  42  Pac.  343.  Therefore,  we  must  regard  the  an- 
swer mere  speculation,  and  not  on  specific  facts,  not  a  flat 
finding.  Findings  must  be  free  of  obscurity.  "They  must 
destroy  the  general  verdict,  if  at  all,  only  by  their  own  in- 
herent clearness  and  strength."  Clementson  on  S])ecial 
Verdicts  135.       Thompson  on  Trials,  §  2693  says:  "The 


J 


Sec.  6]  Special  iNXERKOGAioKrEs  555 

court  will  not  strain  the  language  of  the  special  findings  to 
override  the  general  verdict.  If  possible  they  will  be  in- 
terpreted to  support  the  verdict  rather  than  overturn  it. 
No  presumption  will  be  made  in  their  favor ;  nor  will  they 
control  the  general  verdict,  unless  they  are  invincibly  an- 
tagonistic to  it." 

Another  objection  to  this  finding,  depriving  its  answer 
of  force,  is,  that  it  assumes  a  very  material  fact,  that  is, 
that  Runyan  knew  the  condition  of  the  wires,  their  danger, 
etc.  This  had  a  tendency  to  lead  the  mind  of  jurors  to  con- 
clude that  Runyan  had  such  knowledge,  that  even  the  judge 
thought  so,  else  he  would  not  have  allowed  such  an  inter- 
rogatory. An  interrogatory  must  not  assume  material 
facts.      20  Encv.  PI.  &  Prac.  322 ;  Elliot  v.  Reynolds,  16  Pac. 

698;  Toledo  R.  Co.  v.  Goddard,  25  Ind.  185. 

********** 

Therefore,  we  reverse  the  order  setting  aside  the  verdict, 
and  render  judgment  upon  that  verdict  for  the  plaintiff. 

Reversed  and  rendered. 


EVANSVILLE  &  SOUTHERN  TRACTION  COMPANY 

V.  SPIEGEL. 

Appellate  Court  of  Indiana.      1911. 

Indiana  Appellate, ;  94  Northeastern,  718. 


Lairy,  J.  This  is  an  action  brought  by  the  appellee, 
George  P.  Spiegel,  against  the  appellant  for  damages  oc- 
casioned by  the  death  of  Carl  Spiegel,  the  minor  son  of  ap- 
pellee, which  death  is  alleged  to  have  been  caused  by  the 
negligence  of  appellant  in  the  operation  of  one  of  its  cars 
on  Main  street  in  the  city  of  Evansville,  Indiana.  The  di- 
rection of  Main  street  is  a  little  east  of  north,  and  the  ap- 
pellant company  has  a  double  street  car  track  near  the  cen- 
ter of  said  street.  Williams  street  enters  Main  street  from 
the  east,  at  a  point  almost  opposite  to  the  place  where  Syca- 
more street  enters  it  from  the  west,  so  that  the  soutli  line 
of  Williams  street,  at  the  point  of  its  connection  with  Main 
street,  is  almost  opposite  to  the  point  where  the  north  line 


556  Teiax.  Peactice  [Chap  13 

of  Sycamore  street  connects  with  it  on  the  west.  The  ac- 
cident in  wliich  Carl  Spiegel  lost  his  life  occurred  about 
noon  on  the  4th  day  of  October,  1907.  He  came  out  of 
Williams  street  riding  a  bicycle,  and  started  diagonally 
across  Main  street  toward  Sycamore  street,  and  was  struck 
and  killed  by  a  street  car  going  south  on  the  west  track. 

(3)  On  behalf  of  appellant,  it  is  urged  that  its  motion 
for  judgment  on  the  interrogatories  notwithstanding  the 
general  verdict  should  have  been  sustained,  for  the  reason 
that  these  answers  show  that  the  decedent  was  guilty  of 
negligence  contributing  to  his  death.  The  general  verdict 
in  favor  of  the  plaintiff  is  a  finding  of  every  material  fact 
necessary  to  a  recovery.  The  special  failings  of  the  jury 
will  overthrow  the  general  verdict  only  when  both  cannot 
stand,  and  this  antagonism  must  be  apparent  on  the  face  of 
the  record  beyond  the  possibility  of  being  removed  by  any 
evidence  admissible  under  the  issues  made  by  the  pleadings. 
The  evidence  actually  introducd  cannot  be  considered  in 
passing  upon  this  question.  Cox  v.  Ratcliffe,  105  Ind,  374, 
5  N.  E,  5;  Indiana  National,  etc.,  Co.  v.  Long,  27  Ind,  App. 
219,  59  N.  E.  410, 

(4)  Under  the  issues  formed  by  the  pleadings  in  this 
case,  evidence  might  have  been  introduced  which  would 
bring  the  case  within  the  operation  of  the  doctrine  known 
as  the  ''last  clear  chance."  This  doctrine  is  clearly  stated 
by  a  writer  in  the  Quarterly  Law  Review  (vol.  2,  p.  507),  as 
follows:  ''The  party  who  last  has  a  clear  opportunity  of 
avoiding  the  accident,  notwithstanding  the  negligence  of  his 
opponent,  is  considered  solely  responsible  for  it."  This 
has  been  frequently  recognized  and  applied  by  our  courts. 

(5)  Even  though  it  be  conceded  that  the  answers  to 
the  interrogatories  show  that  the  plaintiff's  decedent  neg- 
ligently approached  and  entered  upon  the  track  of  the  ap- 

'j)enant  in  front  of  an  approaching  car,  and  thus  negligently 
\3xp0sed  himself  to  the  danger  of  a  collision,  this  would  not 
necessarily  preclude  a  recovery  from  injury  resulting  from 
appellant's  negligence.  Answers  to  interrogatories  show- 
ing such  facts  would  not  overthrow  a  general  verdict  in 
favor  of  the  plaintiff,  for  the  reason  that  evidence  may  have 
been  introduced  proving  or  tending  to  prove  that,  after  said 


Sec.  6]  Special  Interrogatories  557 

decedent  was  in  the  position  of  danger  in  which  he  had  so 
negligently  placed  himself,  the  defendant  knew  of  his  peril- 
ous position,  or  might  have  known  it  by  the  exercise  of  or- 
dinary care,  in  time  to  have  prevented  the  injury,  and  that 
it  negligently  failed  to  take  advantage  of  the  last  clear 
chance  to  prevent  the  injury.  It  is  the  duty  of  this  court 
to  reconcile  the  interrogatories  with  the  general  verdict  if 
they  can  be  so  reconciled  by  any  evidence  which  might  have 
been  introduced  within  the  issues;  and,  to  this  end,  the 
court,  in  ruling  upon  this  motion,  will  treat  the  case  as 
though  this  evidence  had  been  introduced  and  acted  upon 
by  the  jury.  In  view  of  what  we  have  said,  we  are  of  the 
opinion  that  the  answers  to  the  interrogatories  are  not  in 
irreconcilable  conflict  with  the  general  verdict,  and  the  mo- 
tion of  appellant  for  judgment  in  its  favor  on  such  inter- 
rogatories notwithstanding  the  general  verdict  was  prop- 
erly overruled. 

[Reversed  on  other  grounds.] 


DEVINE  V.  FEDERAL  LIFE  INSURANCE  COMPANY. 

Supreme  Court  of  Illinois.      1911. 

250  Illinois,  203. 

Mr.  Justice  Cooke  delivered  the  opinion  of  the  court : 
This  was  an  action  brought  in  the  municipal  court  of  the 
city  of  Chicago  by  John  F.  Devine,  as  administrator  of  the 
estate  of  Ralph  W.  Chance,  deceased,  against  the  Federal 
Life  Insurance  Company,  to  recover  the  sum  of  $1000  al- 
leged to  be  due  on  a  policy  of  insurance  claimed  to  have 
been  issued  by  the  company  to  Chance  in  his  lifetime.  The 
policy  was  dated  May  4,  1907,  Chance  was  struck  and 
killed  by  a  train  of  the  Illinois  Central  Railroad  Company 
on  the  morning  of  May  30,  1907.  The  defense  to  the  ac- 
tion was  that  the  i^olicy  had  never  been  in  force,  as  it  had 
not  been  delivered  to  Chance  and  he  had  never  paid  any 
part  of  the  first  premium.  The  claim  of  the  administrator 
was,  that  by  an  arrangement  with  Robert  J.  Jeffs,  the  gen- 


558  Trial  Practice  [Chap  13 

eral  agent  for  the  insurance  company  and  the  person  who 
secured  the  application  of  Chance,  the  policy  was  delivered 
by  the  company  to  Jeffs  for  Chance,  and  it  was  held  by  Jeffs 
to  secure  the  pajTnent  of  three  notes  given  by  Chance  to 
Jeffs,  one  for  the  amount  of  the  first  premium,  one  for  $50 
and  one  for  $10.14.  After  the  death  of  Chance,  and  on 
June  3,  1907,  Jeffs,  who  had  held  the  policy  from  the  time 
of  its  issuance  until  that  date,  returned  it  to  the  insurance 
company,  endorsed  ''not  taken."  The  jury  found  the  is- 
sues for  the  plaintiff  and  returned  a  verdict  for  the  full 
amount  of  the  policy,  $1000.  Judgment  was  rendered  on 
this  verdict  and  an  appeal  was  taken  to  the  Appellate  Court 
for  the  First  District,  where  the  judgment  of  the  municipal 
court  was  affirmed.  The  case  is  brought  here  by  appeal 
upon  a  certificate  of  importance. 

It  is  first  contended  that  this  judgment  should  be  reversed 
for  the  reason  that  the  general  verdict  is  contrary  to  certain 
special  findings  of  fact  made  by  the  jury.  The  jury  were 
asked  to  answer  twelve  special  interrogatories  which  were 
submitted  to  them.  Of  the  twelve,  three  were  so  framed 
that  no  answer  was  required  by  reason  of  the  answers  given 
to  certain  others  of  the  interrogatories.  By  the  first  inter- 
logatory  the  jury  were  asked,  "Was  the  policy  sued  on  in 
this  action  delivered  by  the  Federal  Life  Insurance  Com- 
pany to  Ealph  W.  Chance  during  his  lifetime?"  To  this 
the  jury  answered  ' '  no, ' '  and  it  is  claimed  that  this  finding 
is  so  inconsistent  with  the  general  verdict  that  it  must  be 
held  to  control  the  same  and  that  the  court  should  have  en- 
tered judgment  for  the  appellant.  In  determining  whether 
a  special  finding  is  so  inconsistent  with  the  general  verdict 
that  the  latter  must  be  held  to  be  controlled  by  the  former 
we  cannot  look  at  the  evidence.  All  reasonable  presump- 
tions will  be  entertained  in  favor  of  the  general  verdict 
while  nothing  will  be  presumed  in  aid  of  the  special  finding 
of  fact.  The  inconsistency  must  be  so  irreconcilable  as  to 
be  incapable  of  being  removed  by  any  evidence  admissible 
under  the  issues.  (Chicago  and  Northwestern  Railway  Co. 
V.  Dunleavy,  129  111.  132.)  Applying  this  rule,  we  find  that 
there  is  no  irreconcilable  inconsistency  between  this  special 
findin'g  of  fact  and  the  general  verdict.  By  its  terms  the 
application  for  a  policy  of  insurance  may  be  made  a  part  of 
tlio  policy  itself.      The  application  may  or  may  not  provide 


Sec.  6]  Special  Interrogatories  559 

that  the  insurance  shall  take  effect  only  upon  the  delivery  of 
the  policy  to  the  insured.  Unless  expressly  made  so  by  the 
contract  itself,  an  actual  delivery  of  a  policy  of  insurance 
to  the  insured  is  not  essential  to  the  validity  of  the  contract, 
and  the  rule  under  such  circumstances  is,  that  a  policy  be- 
comes binding  upon  the  insurer  when  signed  and  forwarded 
to  the  insurance  broker  to  whom  the  application  for  insur- 
ance was  made,  to  be  delivered  to  the  insured.  ^^^lere  an 
a])plication  is  made  for  insurance  there  is  no  liability  until 
t)ie  application  is  accepted,  but  the  acceptance  and  issuing 
of  the  policy  complete  the  contract.  (Rose  v.  Mutual  Life 
Ins.  Co.  240  111.  45.)  The  finding  of  the  jury  that  the  pol- 
icy had  never  been  delivered  to  Chance  was  not  the  deter- 
mination of  any  ultimate  fact,  or  of  a  fact  which  had  a  con- 
trolling effect  upon  any  ultimate  fact.  This  finding  is  not 
so  inconsistent  with  the  general  verdict  that  it  should  con- 
trol, and  the  court  did  not  err  in  ignoring  this  finding  and 
entering  judgment  on  the  verdict. 

It  is  urged  that  special  findings  numbered  3,  5,  6,  7,  8,  10 
and  12  are  also  inconsistent  with  the  general  verdict.  We 
do  not  so  regard  them.  The  third  finding  was  that  the  de- 
ceased had  not  paid  the  premium  on  his  policy  in  cash ;  the 
fifth,  that  he  did  execute  a  note  for  the  amount  of  the  pre- 
mium ;  the  sixth,  that  the  note  was  executed  on  May  10, 1907, 
and  delivered  to  Jeffs ;  the  seventh,  that  the  note  was  pay- 
able in  installments  of  $2.50  each,  and  that  the  first  install- 
ment became  due  on  May  29,  !I907;  the  eighth,  that  Chance 
did  not  pay  the  installment  falling  due  on  May  29,  1907 ;  the 
tenth,  that  none  of  the  installments  mentioned  in  said  note 
were  paid  during  the  lifetime  of  Chance;  and  the  twelfth, 
that  the  policy  sued  on  contained  the  provision,  '^  failure  to 
pay  any  premium  or  note,  or  interest  thereon,  when  due,  will 
forfeit,  without  notice,  the  policy  and  all  payments  thereon, 
excepting  as  herein  provided."  It  is  not  necessary  that  a 
premium  on  a  policy  of  life  insurance  should  be  paid  in 
cash.  It  can  be  paid  by  the  giving  of  a  note,  or  otherwise, 
if  so  agreed  by  the  parties.  That  Chance  executed  a  note 
and  delivered  it  to  Jeffs,  the  agent,  for  the  amount  of  the 
first  year's  premium,  and  that  at  the  time  of  his  death  he 
was  in  default  in  the  payment  of  this  note,  would  not  neces- 
sarily invalidate  the  insurance  notwithstanding  the  pro- 
vision found  to  have  been  contained  in  the  policy,  as  Jeffs 


560  Tkial  Peacticb  [Chap.  13 

may  have  taken  the  note  under  such  circumstances  as  would 
constitute  an  absolute  pajonent  of  the  premium.  A  further 
reason  why  these  special  findings  do  not  show  a  forfeiture 
i)f  the  policy  is,  that  by  the  twelfth  finding  the  policy  con- 
tained a  clause  providing  for  a  forfeiture  under  certain 
circumstances, ' '  excepting  as  herein  provided. ' '  What  the 
exceptions  are  is  not  shown  by  any  of  the  special  findings. 
For  anything  that  is  disclosed  by  these  findings,  the  circum- 
stances may  have  been  such  that  they  come  within  some  ex- 
ception contained  in  the  policy  which  would  prevent  a  for- 
feiture. As  we  view  the  special  findings  of  the  jury,  and 
testing  them  by  the  rule  above  referred  to,  we  do  not  regard 
any  of  them  as  inconsistent  with  the  general  verdict. 

We  find  no  error  in  the  record,  and  the  judgment  of  the 
Appellate  Court  is  therefore  affirmed. 

Judgment  affirmed. 

Me.  Chief  Justice  Vickees  took  no  part  in  the  considera- 
tion or  decision  of  this  case. 


Section  7.      Effect  of  Answees  Inconsistent  With  Each 

Othee. 

DRAKE  V.  JUSTICE  GOLD  MINING  COMPANY. 

Supreme  Court  of  Colorado.      1904, 
32  Colorado,  259. 

Me.  Justice  Campbell  delivered  the  opinion  of  the  court. 

The  controversy  here  is  between  the  owners  of  the  Wash- 
ington and  Justice  lode  claims,  situate  in  Gilpin  county,  as 
to  the  ownership  of  ore  bodies  of  a  vein  under  the  surface, 
and  within  the  exterior  boundaries  of  the  Washington  lode 
extended  downward  vertically.  The  claim  of  each  party 
is  based  upon  ownership  of  the  apex. 

The  cause  was  tried  before  a  jury,  and  the  court,  upon 
request,  submitted,  and  the  jury  answered,  three  interroga- 
tories, and  also  returned  what  the  parties  call  a  general  ver- 
dict, in  favor  of  the  defendant,  on  which  judgment  for  it 


Sec.  7]  Special  Interrogatories  561 

was  entered  by  the  court.  The  i)laintiffs  in  error  claim 
that  the  answers  to  these  three  interrogatories  were  in  their 
favor,  and  are  so  inconsistent  with  the  general  verdict  that, 
under  section  199  of  our  civil  code  so  providing,  the  special 
findings  of  fact,  in  such  circumstances,  must  control  the 
general  verdict. 

Where  a  special  finding  of  fact,  inconsistent  with  the 
general  verdict,  is  so  irreconcilable  therewith  as  to  be  in- 
capable of  removal  by  any  evidence  admissible  under  the 
general  issues,  the  general  verdict  cannot  stand,  and  judg- 
ment entered  upon  it  is  improper.  Every  presumption  and 
intendment,  however,  is  to  be  indulged  in  favor  of  a  general 
verdict,  and  in  ascertaining  whether  such  inconsistency 
exists,  recourse  may  not  be  had  to  the  evidence  actually  ad- 
duced at  the  trial,  but  may  be  to  the  issues  as  made  by  the 
pleadings;  and  if,  by  any  possible  competent  evidence  that 
might  be  produced  thereunder,  the  apparent  inconsistency 
can  be  overcome,  it  may  be  disregarded,  and  the  general 
verdict  permitted  to  stand.  But  in  the  view  we  take  of 
whether  there  is  such  an  inconsistency  as  the  plaintiffs  in 
the  case,  it  is  not  necessary,  for  two  reasons,  to  decide 
error  assert. 

1.  We  do  not  so  hold,  but  for  the  purpose  of  the  present 
opinion  we  assume,  with  both  parties,  that  the  verdict  re- 
turned is  a  general  verdict,  and,  with  plaintiffs  in  error,  that 
it  is  in  such  irreconcilable  conflict  with  the  three  special 
findings  of  fact  to  which  they  allude,  as  to  have  made  it  the 
duty  of  the  trial  court  to  disregard  the  general  verdict,  and 
enter  judgment  upon  the  special  findings,  had  action  of  the 
court  been  seasonably  and  properly  invoked.  Such  an  in- 
consistency may  be  waived  by  the  party  against  whom  it 
operates,  or  he  may,  in  the  appropriate  way,  complain  of  it. 
If,  however,  a  party  desires  to  have  heard  in  an  appellate 
tribunal  his  objection  to  the  entering  of  a  judgment  on  a 
general  verdict  which  is  inconsistent  with  special  findings, 
he  must  first  call  the  attention  of  the  lower  court  thereto 
by  a  motion  for  judgment  upon  the  special  findings,  not- 
withstanding the  general  verdict.  A  motion  for  a  new 
trial  does  not  save  the  point.  Here  plaintiffs  in  error  neg- 
lected to  move  for  judgment  on  the  findings,  and  therefore 
thev  mar  not.  on  this  review,  for  the  first  time  be  heard  as 
to  the  alleged  inconsistency. — 2  Thompson  on  Trials,  <^  2696. 
T.  p.— 36 


562  Trial  Peactice  [Chap.  13 

Many  cases  in  Indiana,  where  such  questions  seem  to  have 
arisen  more  frequently  than  in  any  other  state,  expressly 
hold  that  such  a  motion  is  a  necessary  condition  precedent  to 
the  right  to  be  heard  in  an  appellate  tribunal. — Bartlett  v. 
Pittsburgh,  etc,  Ely.  Co.,  94  Ind.  281;  Anderson  et  al  v. 
Hubble,  93  Ind.  570;  BricUey  v.  Weghorn  et  al,  71  Ind. 
497 ;  Adamson  v.  Rose,  30  Ind.  380.  Additional  authorities 
are  collected  in  20  Enc.  PI.  &  Pr.  375. 

2.  The  foregoing  is  upon  the  assimiption  that  only  three 
interrogatories  were  answered  by  the  jury,  and  all  of  them 
were  in  favor  of  plaintiffs,  and  inconsistent  with  the  gen- 
eral verdict  returned  for  defendant.  The  record,  however, 
discloses  that  three  other  interrogatories  submitted  by  the 
court  were  answered  by  the  jury  clearly  and  distinctly  in 
favor  of  the  defendant,  and  they  support,  in  every  par- 
ticular, the  general  verdict.  These  six  answers,  taken  to- 
gether, do  not  show  that  the  jury  so  misunderstood  the  is- 
sues or  were  in  any  way  so  confused  as  to  make  a  new  trial 
necessary.  Such  being  the  case,  the  doctrine  seems  to  be 
well  settled  that  contradictory  and  inconsistent  special  find- 
ings destroy  each  other,  and  the  general  verdict  stands.— 
Ind.,  etc.,  Gas  Co.  v.  McMath,  26  Ind,  App.  154;  Midland 
Steel  Co.  V.  Baugherty,  26  Ind.  App.  272;  2  Thompson  on 
Trials,  -§  2692.  For  additional  authorities,  see  20  Enc. 
PI.  &  Pr.  354,  364  et  seq. 

The  judgment  must  be  affirmed,  and  it  is  so  ordered. 

Affirmed. 


ST.  LOUIS  &  SAN  FRANCISCO  RAILWAY  COM- 
PANY V.  BRICKER. 

Supreme  Court  of  Kansas.      1899, 

61  Kansas,  224. 

The  opinion  of  the  court  was  delivered  by 

Smith,  J. :  The  findings  of  the  jury  being  inconsistent 
with  one  another,  the  verdict  cannot  stand.  It  is  found  that 
the  direct  cause  of  the  injury  was  the  failure  of  the  fore- 


Sec.  7]  Special  Intereogatoeies  563 

man  in  charge  of  the  bridge  repairers  to  give  timely  warn- 
ing to  the  defendant  in  error,  and  neglect  of  the  foreman  to 
inform  the  men  who  were  unloading  the  timbers  that  there 
was  any  one  under  the  bridge  at  work.  It  is  also  found 
that  defendant  in  error  knew  that  his  coemployees  were  at 
work  above  him,  and  that  they  were  about  to  throw  off  a 
stick  of  timber.  This,  coupled  with  the  finding  that 
Bricker  could  have  avoided  the  injury  complained  of  had  he 
remained  where  he  was  at  work  and  watched  which  side  of 
the  bridge  the  stick  of  timber  was  about  to  fall,  tends  to  the 
conclusion  that  the  defendant  in  error  was  guilty  of  contrib- 
utory negligence,  and  that  his  own  want  of  care,  and  not 
that  of  the  foreman,  caused  the  injury.  While  want  of 
ordinary  care  on  the  part  of  the  foreman  is  expressly  found 
in  at  least  six  of  the  answers  to  particular  questions,  yet  a 
strong  showing  of  contributory  negligence  on  the  part  of 
plaintiff  below  appears  in  three  other  answers. 

The  inconsistency  between  these  different  findings  is  so 
palpable  and  clear  as  to  render  them  irreconcilable.  In 
one  answer  the  jury  say  that  plaintiff  below  had  no  timely 
warning  of  danger,  and  in  another  that  his  situation  and 
information  were  such  that  he  needed  none — in  effect,  say- 
ing that  a  warning  would  not  contribute  to  the  knowledge 
he  already  possessed  of  his  dangerous  position.  The  gen- 
eral verdict,  based  on  such  findings,  must  be  set  aside. 
{Shoemaker  v.  St.  L.  d  S.  F.  Ely.  Co.,  30  Kan.  359,  2  Pac. 
517;  A.  T.  &  S.  F.  Rid.  Co.  v.  Weber,  Adm'r,  33  id.  543, 
6  Pac.  S77;A.T.£  S.  F.  Rid.  Co.  v.  Maker,  23  id.  163.) 

The  judgment  of  the  court  below  will  be  reversed,  and  a 
new  trial  ordered. 


CHAPTER  XIV. 

SPECIAL  VERDICTS. 

FIRST  NATIONAL  BANK  V.  PECK. 

Supreme  Court  of  Kansas.      1871. 
8  Kansas,  660. 

Beewer,  J. :  *    *    * 

********** 

In  this  case  a  special  verdict  was  returned  at  the  instance 
of  the  plaintiff.  Objection  was  made  to  the  verdict  on  the 
ground  that  it  did  not  state  all  the  facts  established  by  the 
evidence.  Special  verdicts  and  findings  upon  particular 
questions  of  fact  are  by  the  laws  of  1870  matters  of  right. 
Laws  1870,  p.  173,  sec.  7.  It  is  no  longer  discretionary  with 
the  court  to  require  them  or  not.  Under  these  circum- 
stances it  becomes  important  to  determine  the  scope  of  a 
special  verdict  as  fixed  by  our  statute.  Considerable  dif- 
ference of  opinion  has  existed  in  reference  to  it,  and  a  ju- 
dicial construction  in  this  court  will  doubtless  be  of  service 
in  many  cases.  Wliat  is  a  special  verdict?  Under  our 
statute  the  jury  can  be  called  upon  to  respond  in  three  ways 
— by  a  general  verdict,  by  a  special  verdict,  and  by  re- 
turning answers  to  particular  questions  of  fact.  True,  this 
latter  mode  of  interrogating  the  jury  can  be  resorted  to 
only  in  conjunction  with  the  first,  but  it  is  nevertheless  a 
distinct  mode.  A  general  verdict  embraces  both  the  law 
and  the  facts.  It  states  the  result  of  the  whole  contro- 
versy. It  determines  the  ultimate  rights  of  the  parties. 
It  combines  the  decisions  of  the  court  with  the  opinions  of 
the  jury.  True,  the  jury  receive  the  law  in  the  instruc- 
tions of  the  court,  but  they  apply  the  law  to  the  facts,  and, 
having  combined  the  two,  declare  the  result.  So  that  un- 
der such  a  verdict  they  really  perform  two  functions,  that 
of  finding  the  facts,  and  then  that  of  applying  the  law  to 
those  facts.  Any  one  at  all  familiar  with  the  experiences 
of  a  court-room  is  aware  that  the  errors  of  the  jury  result 

564 


Chap.  14]  Special  Verdicts  565 

oftener  from  their  misapplication  of  the  law  as  stated,  to 
the  facts,  than  from  their  misapprehension  of  the  facts.  A 
special  verdict,  on  the  other  hand,  finds  only  the  facts,  and 
leaves  to  the  court  tbp  duty  both  of  determining  the  law  and 
of  applying  it  to  the  facts.  It  is  thus  defined  in  sec.  285  of 
the  code  of  civil  procedure.  Gen.  Stat.,  684 :  ' '  A  special  ver- 
dict is  that  by  which  the  jury  finds  facts  only.  It  must  pre- 
sent the  facts  as  established  by  the  evidence,  and  not  the 
evidence  to  prove  them."  It  was  decided  in  1  Miles,  26, 
that  "if  instead  of  finding  facts  the  special  verdict  sets  out 
the  evidence,  a  new  trial  will  be  granted."  Whether  that 
be  the  necessary  result  or  no,  it  is  clear  that  a  special  ver- 
dict should  not  be  a  recital  of  testimony,  but  a  iinding  of 
certain  facts  as  established  by  such  testimony.  But  what 
facts?  How  minutely  may  they,  must  they,  be  subdivided? 
The  facts  stated  in  the  pleadings ;  as  minutely,  and  no  more 
so  in  the  special  verdict,  than  in  the  petition,  answer,  and 
reply.  The  special  verdict  must  conform  to  the  pleadings. 
The  word  "facts"  is  used  in  this  section  in  the  same  sense, 
and  refers  to  the  same  things  as  when  used  in  sec.  87  of  the 
code,  which  declares  that  a  "petition  must  contain  a  state- 
ment of  the  facts  'Constituting  the  cause  of  action,  in  ordi- 
nary and  concise  language  without  repetition."  There 
are  in  every  cause  of  action  certain  essential  substantive 
facts,  certain  elements,  so  to  speak.  Every  pleader  knows 
this  when  he  prepares  a  petition.  The  omission  of  any  one 
of  these  elements  renders  the  petition  defective.  The  fail- 
ure to  prove  one  defeats  the  cause  of  action.  Now  these 
essential  elemental  facts  are  the  ones  the  special  verdict 
must  find,  no  more,  no  less.  A  history  of  the  case  in  the 
nature  of  a  recital  of  the  testimony,  or  a  detail  of  the  va- 
rious steps  in  the  transaction  is  not  the  function  of  a  spe- 
cial verdict.  It  responds  to  the  various  facts  of  the  peti- 
tion like  a  special  denial,  touching  ea-ch  separately.  The 
statute  clearly  points  to  this  construction.  It  says,  (T^aws 
1870,  p.  173,  ch.  87,  sec.  7,  amending  sec.  286  of  the  code,) 
"the  court  shall  direct  the  jury  to  find  a  special  verdict  in 
writing  upon  all  or  any  of  the  issues  in  the  case."  The  is- 
sues are  to  be  passed  upon  in  the  special  verdict.  In  Bacon's 
Abridgement,  vol.  10,  p.  313.  it  is  said,  citing  as  authority 
Unitpd  St  flies  v.  Briqht,  Bright 's  Trial,  199,  "If  in  a  special 
verdict  the  jury  find  the  issue,  all  they  find  beyond  is  sur- 


566  Trial  Practice  [Chap.  14 

pliisage."      The  special  verdict  is  simply  the  response  of 
the  jury  separately  to  the  several  issues  presented  by  the 
pleadings.      *****    xhe  judgment  will  be  affirmed. 
All  the  Justices  concurring. 


STANDARD  SEWING  MACHINE  COMPANY  V. 
ROYAL  INSURANCE  COMPANY. 

Supreme  Court  of  Pennsylvania.      1902. 

201  Pennsylvania  State,  645. 

Opinion  by  Mr.  Justice  Mestrezat,  March  3,  1902 : 
This  was  an  action  of  assumpsit  on  a  fire  insurance  pol- 
icy issued  by  the  defendant.      On  the  trial  the  court  below 
instructed  the  jury  to  return  a  special  verdict  and  to  answer 
the  following  questions : 

1.  Did  Bedient  take  possession  of  the  property  in  the 
interest  of  the  machine  company,  and  let  Markle  and  Merry- 
man  hold  it  for  the  company  after  the  assignment  for  the 
benefit  of  creditors  and  prior  to  the  fire  in  question? 

2.  Did  the  machine  company  thus  acting  through  Be 
dient  subject  the  property  to  hazard  not  contemplated  by 
the  policy  and  stipulated  against  by  the  provisions  thereof? 

3.  What  was  the  loss?  This  is  to  be  estimated  by  the 
cost  of  repairing  or  replacing  the  propertv  with  material  of 
like  kind  and  quality  so  as  not  to  exceed  the  limit  thus  indi- 
cated.^ 

1  Form  of  special  verdict.  This  method  of  preparing  a  special  verdict, — 
in  the  form  of  questions  to  be  pnt  to  the  jury  upon  all  the  material  facts  in 
the  cape,  is  a  common  and  convenient  one.  It  is  sometimes  prescribed  by 
statute. 

In  any  event,  the  jury  cannot  be  expected  to  draw  up  their  own  form  of 
special  verdict,  and  it  must  be  done  by  counsel.  As  said  in  Pittsburgh,  Ft. 
W,  and  C.  Ey.  Co.  v.  Ruby,  (1871)  38  Tnd.  294,  "Jurors  are  very  competent 
to  understand  the  evidence,  find  facts,  and  draw  conclusions  from  the  facts 
found ;  but  as  a  general  rule,  and  especially  in  complicated  cases,  they  are 
not  equal  to  the  task  of  preparing  a  syiecial  verdict.  They  do  not  know 
what  facts  should  be  found  to  cover  the  issues,  nor  the  manner  of  stating 
them. ' ' 

Another  familiar  method  is  for  counsel  on  each  side  to  prepare  a  special 
verdict  in  the  form  of  a  statement  of  the  facts  which  they  believe  have  been 
estniilished  by  the  evidence,  and  submit  the  same  to  the  trial  judge,  vho  there- 
upon hands  both  forms,  with  or  without  amendment,  as  he  deems  proper,  to 
the  jury  under  proper  instructions,  and  the  jury  may  then  adopt  either  one, 
in  the  form  presented  to  them  or  with  such  changes  as  they  wish  to  make, 
fiR  their  verdict.  Pittsburgh,  Ft.  W.  &  C.  Ry.  Co.  v.  Ruby,  supra;  22  Encyc. 
PI.  &   Pr.  993. 


Chap.  14]  Special  Verdicts  567 

The  first  question  was,  by  agreement  of  counsel,  an- 
swered in  the  affirmative ;  the  jury  returned  a  negative  reply 
to  the  second  question;  and  to  the  third  question,  the  an- 
swer was  $1,747.  Subsequently  the  court  entered  judg- 
ment on  the  verdict  in  favor  of  the  plaintiff  for  $1,747. 

This  appeal  is  by  the  defendant  and  error  is  alleged  in  the 
ruling  of  the  court  on  the  measure  of  damages,  in  the  con- 
struction put  upon  the  policy  of  insurance  by  the  court,  and 
in  entering  judgment  on  the  special  verdict,  the  defendant 
claiming  that  the  facts  found  were  not  sufficient  to  sustain 
the  judgment. 

The  last  reason  assigned  for  reversing  the  judgment  of 
the  court  below  may  be  considered  first. 

It  is  the  province  of  a  special  verdict  to  find  and  place  on 
record  all  the  essential  facts  in  the  case.  This  includes  the 
disputed  as  well  as  the  undisputed  facts.  What  is  not 
found  by  the  verdict  is  presumed  not  to  exist,  and  no  infer- 
ences as  to  matters  of  fact  are  permitted  to  supply  the 
facts  themselves  which  the  verdict  should  have  found.  In 
entering  judgment,  the  court  is  confined  to  the  facts  found 
In-  the  special  verdict,  and  unless  they  are  sufficiently  found 
no  judgment  can  be  entered.  The  jury  must  find  the  facts 
and  the  court  declare  the  law  on  the  facts  so  found.  Such 
are  the  requisites  of  a  special  verdict  as  held  in  all  our 
cases.  In  Wallingford  v.  Dunlap,  14  Pa.  33,  it  is  said: 
"It  is  of  the  very  essence  of  a  special  verdict  that  the  jury 
should  find  the  facts,  on  which  the  court  is  to  pronounce 
judgment  according  to  law.  And  the  court  will  not  intend 
anything,  especially  any  fact  not  found  by  the  jury.  *  *  * 
The  undisputed  facts  ought  to  have  been  incorporated  in 
the  special  verdict.  *  *  *  The  court  is  confined  to  the 
facts  found  by  the  special  verdict.  And  when  a  special 
verdict  is  given,  the  court  ought  to  confine  its  judgment  to 
that  verdict.  *  *  *  But  this  special  verdict  is  so  defective 
and  erroneous,  and  the  judgment  so  anomalous  in  being  en- 
tered partly  on  the  verdict  and  partly  on  what  was  called 
undisputed  facts,  that  we  must  do  what  has  often  been 
done  before,  reverse  the  judgment  and  send  the  case  back 
for  a  new  trial."  Me.  Justice  Mercur,  delivering  the 
opinion  of  the  court  in  Vansyckel  r.  Stewart,  77  Pa.  126, 
says:  "It  (special  verdict)  must  include  both  disputed  and 
undisputed  facts.     The  court  will  not  infer  a  fact  not  found 


568  Trial  Peactice  [Chap.  14 

by  the  jury.  It  must  declare  the  law  on  these  facts  alone. 
As  all  the  essential  facts  must  be  found  in  the  verdict,  it 
follows  that  it  cannot  be  aided  by  intendment  or  by  ex- 
trinsic facts  appearing  upon  the  record."  In  Tuigg  v. 
Treacy,  104  Pa.  498,  Clark,  J.,  speaking  for  the  court,  says : 
"We  cannot  resort  to  the  testimony,  or  to  such  extrinsic 
matters  as  were  undisputed  at  the  trial,  or  avail  ourselves 
of  such  even  as  appear  upon  the  record.  It  is  of  the  very 
essence  of  a  special  verdict,  that  the  facts  found  are  those 
upon  which  the  court  is  to  pronounce  judgment,  according  to 
law.  What  is  not  thus  found  is  presumed  not  to  exist,  the 
verdict  being  conclusively  the  complete  result  of  the  jury's 
deliberation  upon  the  whole  case  presented." 

In  delivering  the  opinion  of  the  court  in  the  compara- 
tively recent  case  of  McCormicJc  v.  Royal  Insurance  Com- 
pany, 163  Pa.  194,  Chief  Justice  Sterrett  says :  ' '  Nothing 
is  better  settled,  on  principle  as  well  as  authority,  than  that 
all  the  facets  upon  which  the  court  is  to  pronounce  judgment 
should  be  incorporated  in  the  special  verdict.  It  is  the  ex- 
clusive province  of  the  jury,  in  the  first  place,  to  determine 
all  disputed  questions  of  fact,  from  the  evidence  before 
them;  and  then  their  special  verdict  is  made  up  of  those 
findings  of  fact,  together  with  such  undisputed  facts  as  may 
be  necessary  to  a  just  decision  of  the  cause.  *  *  *  The 
court,  in  considering  a  special  verdict  and  entering  judg- 
ment thereon,  is  necessarily  confined  to  the  facts  found  and 
embodied  in  the  verdict;  the  latter  cannot  be  aided  by  in- 
tendment or  extrinsic  facts  that  may  appear  in  the  evi- 
dence." 

Applying  these  principles  to  the  case  in  hand,  it  is  appar- 
ent that  the  verdict  hero  is  fatally  defective.  As  said  by 
Chief  Justice  Black  in  Thayer  v.  Society  of  United  Breth- 
ren, 20  Pa.  63,  "the  jury  found  a  special  verdict,  but  it 
omits  almost  every  importance  fact."  Here  the  verdict 
found  but  three  of  the  many  facts  necessary  to  support  a 
judgment.  It  is  silent  as  to  whether  a  policy  of  insurance, 
the  basis  of  this  action,  was  issued  to  the  plaintiff,  and  the 
terms  of  the  policy;  as  to  what  property  was  insured  and 
where  situated;  as  to  the  loss  of  or  damage  to  the  insured 
property  and  whether  it  occurred  within  the  life  of  the  pol- 
icy; and  as  to  the  cause  of  the  loss,  whether  by  fire  or  other- 
wise.      Other  omissions  of  fact  might  be  suggested,  but 


Chap.  14]  Special  Veedicts  569 

those  named  are  sufficient  to  show  that  the  verdict  is  wholly 
inadequate  to  sustain  the  judgment  entered  by  the  court 
below.  A  special  verdict  more  barren  of  facts  is  not  to  be 
found  in  the  reported  cases. 

*  *  *  the  judgment  is  reversed  and  a  venire  facias  de 
novo  is  awarded.^ 

1  There  is  some  authority  to  the  contrary,  as  in  Wisconsin,  but  see  Hodges 
V.  Easton  (1882)  106  U.  S.  408,  where  it  was  held  that  the  practice  of  ren- 
dering judgment  on  a  special  verdict  which  found  only  the  disputed  facts  but 
not  those  undisputed,  was  a  denial  of  the  right  of  trial  by  jury. 


WABASH  RAILROAD  COMPANY  V.  RAY. 

Supreme  Court  of  Indiana.       1899. 
152  Indiana,  392. 

Jordan,  J. — The  appellant  railroad  company  owned  and 
operated  as  one  of  its  branches  a  railroad  extending  from 
the  city  of  Detroit,  Michigan,  through  Columbia  City,  In- 
diana, to  the  city  of  Peru,  in  the  latter  State.  Appellee  is 
the  administratrix  of  William  0.  Ray,  deceased,  who  was  at 
and  prior  to  his  death  in  the  employ  of  appellant  as  a 
brakeman  on  one  of  its  local  freight  trains.  He  was  ac- 
cidentally killed  while  coupling  cars  at  Columbia  City,  by 
catching  his  foot  in  an  unblocked  guard-rail,  and  while  in 
such  condition  was  run  over  by  the  ear  which  he  was  at- 
tempting to  couple. 

To  recover  for  this  alleged  negligent  killing,  the  appellee 
successfully  prosecuted  this  action  in  the  lower  court,  and, 
upon  a  special  verdict  by  the  jury,  obtained  a  judgment  for 
$5,000.  The  alleged  errors  of  which  appellant  complains, 
in  the  main,  are  based  upon  the  decision  of  the  court  in  over- 
ruling a  demurrer  to  the  amended  complaint,  and  in  deny- 
ing its  motion  for  a  judgment  upon  the  special  verdict  of  the 
jury,  and  in  overruling  its  motion  for  a  new  trial. 

We  may,  at  least  for  the  present,  pass  the  consideration 
of  the  sufficiency  of  the  complaint,  for  the  reason  that  sub- 
stantially the  same  facts,  and  the  same  theory  thereunder, 
are  disclosed  by  the  special  verdict,  and  if  we  can  hold 


570  Trial  Peactice  [Chap.  14 

that,  under  the  facts  therein  found,  appellee  is  entitled  to  a 
judgment,  such  holding  will  certainly  result  in  sustaining 
the  complaint.  Counsel  for  appellant  earnestly  insist  that 
their  motion  for  a  judgment  in  favor  of  appellant,  upon  the 
special  verdict,  ought  to  have  been  sustained.  Preliminary 
to  the  consideration  of  this  insistence,  we  may  properly 
refer  to  some  familiar  and  well  settled  rules  applicable  to  a 
special  verdict,  one  of  which  is  that  it  is  the  very  essence  of 
such  a  verdict  that  it  state  all  the  material  facts  within  the 
issues  of  the  case,  and  no  omission  of  a  fact  therein  can  be 
supplied  by  intendment.  Its  failure  to  find  a  fact  in  favor 
of  the  party  upon  whom  the  burden  of  establishing  it  rests 
is  the  equivalent  of  an  express  finding  against  him  as  to 
such  fact.  When  the  party  having  the  onus  in  a  case  asks 
a  judgment  upon  a  special  verdict,  the  material  facts  there- 
in found,  within  the  issues,  must  establish  his  right,  under 
the  law,  to  a  judgment,  otherwise  he  must  fail  in  his  de- 
mand; but  where,  as  in  this  case,  the  moving  party  is  not 
the  one  upon  whom  the  burden  of  the  issue  rests,  his  right 
to  be  awarded  a  judgment  does  not  depend  alone  upon  the 
presence  of  material  facts,  but  he  may  be  entitled  to  the 
judgment  by  reason  of  the  absence  of  some  essential  fact 
which  it  was  incumbent  upon  his  adversary  to  establish. 

For  the  reasons  stated,  the  facts  set  out  in  special  verdict 
do  not  entitle  appellee  to  a  judgment  against  appellant. 
*  *  *  The  judgment  is  reversed,  and  the  cause  remanded 
to  the  lower  court,  with  instructions  to  sustain  appellant's 
motion  for  judgment  in  its  favor  on  the  special  verdict. 


DARCEY  V.  FARMERS'  LUMBER  COMPANY. 

Supreme  Court  of  Wisconsin.      1894. 

67  Wisconsin,  245. 

Action  for  personal  injuries.  Plaintiff  was  an  employee 
in  defendant's  sawmill,  and  had  been  such  for  about  twenty 
days  before  the  15th  day  of  July,  1891,  when  the  injuries 
complained  of  occurred.      He  was  twenty-three  years  of 


Chap.  14]  Special  Vekdicts  571 

age.  flis  duty  was  to  take  edging  and  slabs  from  a  cer- 
tain line  of  rollers  and  put  them  on  the  ** slashing"  table, 
in  which  were  a  number  of  "slashing"  saws;  and  when  at 
work  he  stood  in  an  alley  between  the  slashing  table  and  the 
said  line  of  rollers.  Near  him  was  a  large  rotary  saw, 
called  the  * 'cut-off"  saw,  which  revolved  vertically,  and  was 
hung  at  right  angles  with  the  line  of  rollers,  and  projected 
into  the  alley  in  which  plaintiff  worked,  but  with  room  to 
pass  along  the  alley;  and  this  saw  was  at  all  times  running 
at  a  high  rate  of  speed.  *  *  *  The  negligence  charged  was 
in  leaving  the  lower  part  of  the  saw  uncovered. 

The  jury  returned  the  following  special  verdict:  *     *     * 
Judgment  for  the  plaintiff  was  entered  on  this  verdict, 
and  defendant  appealed. 

WiNSLOW,  J    *      *      * 

In  answer  to  the  fifth  question,  the  jury  find  that  the  dan- 
gers and  risks  from  the  exposed  saw  would  be  apparent  to 
any  person  using  ordinary  care  and  observation  in  like  sit- 
uation with  the  i:)laintiff.  This  must  include  the  risk  from 
which  the  plaintiff's  injurj^  resulted,  or  else  it  is  wholly  ir- 
relevant, and  we  so  construe  it.  The  question  and  answer, 
therefore,  meian  that  the  plaintiff  was  chargeable  with 
knowledge  of,  and  therefore  assumed,  the  risk  from  which 
the  accident  resulted  by  remaining  in  the  employment  with- 
out objection.  This  is  a  form  of  contributory  negligence. 
2  Thomp.  Neg.  1014,  sec.  19;  Nadau  v.  White  River  L.  Co., 
76  Wis.  120-131.  In  answer  to  the  sixth  question,  the  jury 
find  that  there  was  no  contributory  negligence  on  the  part 
of  the  plaintiff. 

Now,  the  only  irround  upon  which  it  was  claimed  that 
contributorv  negligence  could  be  imputed  to  plaintiff  was 
(as  charged  bv  the  court)  flint  he  remained  in  the  emplov- 
ment  after  he  knew,  or  ought  to  have  known,  the  risk  which 
he  incurred.  This  makes  it  very  clear  that  the  sixth  ques- 
tion and  answer  amount  to  a  findins:  that  the  plaintiff  was 
not  chargeable  with  knowledge  of  the  risk.  But  we  have 
seen  that  the  fifth  finding  is  a  finding  that  he  was  charge- 
able with  such  knowledge.  The  direct  contradiction  be- 
tween these  two  findings  makes  a  judgment  for  the  plaintiff 
on  the  verdict  impossible,  and  a  new  trial  must  be  had. 


572  Teial  Practice  [Chap.  14 

By  the  court. — Judgment  reversed,  and  action  remanded 
for  a  new  trial. 


BAXTER  V.  CHICAGO  &  NORTHWESTERN  RAIL- 
WAY COMPANY. 

Supreme  Court  of  Wisconsin.      1899. 

104  Wisconsin,  307. 

Action  by  an  employe  of  defendant  to  recover  compensa- 
tion for  personal  injuries  received  by  him  by  the  explosion 
of  a  locomotive  engine,  claimed  to  have  been  caused  by  de- 
fendant's keeping  it  in  use  with  knowledge,  or  reasonable 
means  of  knowledge,  that  it  was  defective  to  a  degree  which 
rendered  such  an  accident  among  the  natural  and  reason- 
able probabilities,  and  one  which,  in  the  exercise  of  ordinary 
care,  it  should  have  apprehended. 

Marshall^  J.  The  chief  controversy  on  the  trial  was  as 
to  whether  the  defective  condition  of  the  boiler,  which 
caused  the  explosion,  ought  to  have  been  discovered  by  the 
defendant  before  that  event,  and  guarded  against.  To  cover 
that  field  by  the  special  verdict,  defendant's  attorneys  re- 
quested the  court  to  submit  for  answers  these  four  ques- 
tions :  '■  *■  Could  the  defects  have  been  discovered  without  re- 
moving the  flues  from  such  boiler?"  ''Was  it  the  ordi- 
nary custom  and  practice  among  persons  generally,  using 
locomotive  boilers  of  a  like  kind,  under  similar  circum- 
stances, to  remove  the  flues  for  the  purpose,  only,  of  in- 
specting the  shell  of  such  boiler?"  "Was  the  boiler  of  en- 
gine No.  249,  up  to  the  time  it  exploded,  used,  operated, 
treated,  and  inspected  by  the  defendant  in  tlie  manner  us- 
ually and  ordinarily  followed  by  persons  generally,  who  use, 
operate,  treat,  and  inspect  locomotive  engine  boilers  of  a 
like  kind  under  similar  circumstances?"  ''If  you  answer 
'Yes'  to  question  No.  10,  did  such  use,  operation,  treatment, 
and  inspection  cause  or  reveal  any  defects  which  caused  the 
injury  to  plaintiff?"  Such  questions  were  rejected  and  in 
lieu  thereof,  following  the  question  of  whether  the  boiler 


Cbap.  14]  Special  Verdicts  573 

was  defective  in  fact  and  the  nature  of  the  defects,  this 
question  was  submitted;  "If  you  find  in  answer  to  question 
No  5  that  the  boiler  was  defective  at  the  time  of  said  ex 
plosion,  then  could  the  defendant  company  through  its 
agents  and  servants,  by  reasonable  and  proper  care,  tests, 
or  inspection,  have  discovered  such  defects  before  the  ex- 
plosion?" In  connection  with  such  question  the  jury  were 
instructed  as  follows:  "Reasonable  care  as  used  in 
this  question  means  such  care  as  ordinarily  careful 
persons  exercise  under  like  circumstances,  and  rea- 
sonable tests  and  inspections  mean  such  tests  and 
inspections  as  are  made  and  employed  by  ordinarily 
]irudent  persons  engaged  in  the  same  business  and  under 
like  circumstances."  That  ruling  is  assigned  as  error  and 
it  appears  to  be  one  of  the  chief  grounds  of  complaint.  Ap- 
l^ellant's  counsel  do  not  contend  but  that  the  real  fact  in  is- 
sue was,  by  the 'Court's  question  as  explained,  placed  before 
the  jury  for  determination,  but  they  contend  that  the  right 
of  defendant  to  a  special  finding  as  to  every  material  fact 
in  issue,  stripped  of  all  conclusions  of  law,  was  violated  be- 
cause the  question  required  the  application  of  legal  defini- 
tions and  explanations  in  order  to  enable  the  jury  to  prop- 
erly answer  it,  the  result  being  that  the  final  conclusion  em- 
bodied in  the  answer  was  rather  a  conclusion  of  law  than 
one  of  fact ;  and  in  support  of  that  a  lengthy  argument  upon 
the  character  of  a  special  verdict  under  the  statute  was 
presented. 

It  seems  hardly  necessary  at  this  day  to  discuss  questions 
so  elementary  as  what  constitutes  a  special  verdict.  It  is 
a  finding  upon  all  the  material  issues  of  fact  raised  by  the 
])leadings.  A  failure  to  distinguish  between  such  facts  and 
the  numerous  evidentiary  circumstances  which  may  be  the 
subjects  of  controversy  on  the  evidence  and  are  relied  upon 
to  establish  the  ultimate  facts  upon  which  the  'Case  turns, 
often  leads  to  unjust  criticism  of  a  special  verdict.  A  con- 
clusion is  not  one  of  law  because  it  is  reached  by  a  process 
of  reasoning  from  many  primary  circumstances.  AYliile 
such  circumstances  may  be  in  dispute,  the  real  question  is, 
Do  they  lead  with  reasonable  certainty  to,  and  establish, 
the  fact  alleged  by  the  pleading  upon  the  one  side  and  de- 
nied by  the  pleading  upon  the  other?  If  the  subject  of  the 
allegation  in  the  complaint  be  one  of  law,  or  of  mere  evi- 


574  Trial  Practice  [Chap.  14 

dence,  it  has  no  proper  place  in  the  pleading,  and  hence  no 
necessary  place  in  the  special  verdict.  By  the  complaint, 
certain  facts  are  alleged  to  exist  constituting  the  plaintiff's 
cause  of  action  and  warranting  the  remedy  sought.  Those 
facts,  if  put  in  issue  by  the  answer,  and  controverted  on  the 
evidence,  in  case  of  a  special  verdict,  must  appear  to  exist 
thereby,  or  the  conclusion  of  law  must  be  against  the  plain- 
tiff. The  object  of  a  special  verdict  is  solely  to  obtain  a 
decision  of  issues  of  fact  raised  by  the  pleadings,  not  to 
decide  disputes  between  witnesses  as  to  minor  facts,  even  if 
such  minor  facts  are  essential  to  and  establish,  by  inference 
or  otherwise,  the  main  fact.  Goesel  v.  Davis,  100  Wis.  678 ; 
Eberhardt  v.  Sanger,  51  Wis.  72 ;  Jeivell  v.  C,  St.  P.  S  M.  R. 
Co.,  54  Wis.  610;  Klochinski  v.  Shores  L.  Co.,  93  Wis.  417; 
Ward  V.  C,  M.  &  St.  P.  R.  Co.,  102  Wis.  215.  A  strict  com- 
pliance with,  this  rule  requires  that  the  verdict  be  made  up 
of  sufficient  questions  to  at  least  cover,  singly,  every  fact  in 
issue  under  the  pleadings.  If  that  could  always  be  kept  in 
view,  the  legitimate  purpose  of  such  a  verdict  in  promoting 
the  administration  of  justice  would  be  uniformly  accom- 
plished, and  the  opinion  entertained  by  some  that  its  use  i'^ 
harmful  would  cease  to  exist. 

Testing  the  ruling  of  the  trial  court  by  what  has  been 
said,  it  is  free  from  any  reasonable  criticism.  Neither  of 
the  questions  which  were  refused  called  for  a  response  to 
any  issue  raised  by  the  pleadings.  Each  called  for  a  find- 
ing as  to  some  essential  as  a  matter  of  law  to,  or  bearing  on 
the  existence  of,  the  main  fact,  each  being,  however,  of  a 
strictly  evidentiary  character.  The  real  fact  in  issue  was 
as  to  whether  the  condition  of  the  boiler  which  caused  the 
explosion  ought  to  have  been  known  to  the  defendant.  The 
question  submitted  plainly  covered  that  subject.  The  de- 
gree of  care  with  which  the  defendant  was  chargeable  was 
strictly  a  legal  question.  WTiether  that  degree  of  care  was 
exercised  in  the  instance  under  consideration  was  strictly 
a  question  of  fact.  The  instruction  properly  laid  down  the 
law  for  the  guidance  of  the  jury,  and  the  question  called  for 
an  answer  as  to  whether  the  defendant  came  up  to  the  legal 
standard  in  the  particular  instance.  The  jury  were  thus 
called  upon  to  find  the  fact,  not  the  evidence  of  the  fact, 
leaving  it  to  tlio  court  to  ap|)ly  tlioreto  the  proper  legal 
principles.      No  doubt  the  finding  of  evidentiary  facts  is 


Chap.  14]  Special  Vekdicts  575 

fiometimes  helpful  in  tying  the  jury  down  to  the  precise 
question  in  controversy,  by  keeping  before  them  the  bar- 
riers they  must  overcome  in  order  to  reach  the  conclusion 
contended  for  by  plaintiff ;  but  so  long  as  the  ultimate  ques- 
tion is  properly  one  of  fact,  or  of  mixed  law  and  fact  prop- 
erly pleadable  as  matter  of  fact,  and  essential  to  the  cause 
of  action  upon  w4iich  a  recovery  is  sought,  it  is  strictly  the 
proper  subject  of  a  question,  and  those  facts  from  which  it 
is  or  may  be  inferable  may  properly  be  omitted. 

The  idea  advanced  by  counsel  for  the  defendant  that  the 
statutory  right  to  a  special  verdict  is  only  satisfied  by  ques- 
tions that  do  not  need  to  be  -considered  in  the  light  of  legal 
principles  given  to  the  jury  by  the  court,  is  contrary  to  the 
universal  practice  and  the  settled  law  upon  the  subject. 
Often,  whether  certain  conduct  complained  of  is  negligence, 
where  the  evidentiary  facts  are  all  established,  is  a  question 
of  fact,  in  respect  to  which  different  minds  may  reasonably 
come  to  different  conclusions.  In  that  situation  it  is  neces- 
sary to  carefully  instruct  the  jury  regarding  the  standard 
of  care  necessary  to  the  performance  of  the  duty  alleged  to 
^lave  been  violated,  leaving  it  to  them  to  determine  whether 
'he  alleged  wrongdoer  came  up  to  the  legal  standard  in 
the  particular  instance  complained  of.  The  question  of 
contributory  negligence,  of  proximate  cause,  and  what  is 
reasonable,  are  only,  ordinarily,  determinable  by  viewing 
evidentiary  facts  in  the  light  of  legal  principles.  The  ulti- 
mate fact  being  only  properly  determinable  by  viewing  evi- 
dentiary facts  in  the  light  of  legal  standards,  instructions 
bv  the  court  in  regard  to  such  standards  are  necessary. 
When  such  ultimate  facts  are  established,  the  legal  liability 
follows  as  a  conclusion  of  law.  At  that  point  the  jury 
should  not  be  instructed.  They  are  to  find  the  facts, 
guided  bv  the  law  regarding  such  facts,  but  regardless  of 
the  legal  effect  of  their  conclusions.  The  issues  of  fact 
raised  by  the  pleadings  are  to  be  passed  upon  by  the  jury. 
The  legal  conclusion  to  be  drawn  from  such  findings  is  to  be 
referred  to  the  court  with  an  additional  conclusion  by  the 
jury,  express  or  implied,  that  if  the  court  should  be  of  the 
opinion,  upon  the  whole  case,  as  found,  that  plaintiff  has  a 
good  cause  of  action,  they  find  for  the  plaintiff*,  otherwise 
for  the  defendant.      Suydam  v.  Williamson,  20  How.  427. 


576  Trial  Practice  [Chap.  14 

*  *  *  Further,  it  is  proper,  and  on  request  it  is  error  to 
refuse,  to  give  instructions  requested  as  to  each  question 
submitted,  that  may  be  reasonably  necessary  to  enable  the 
jury  to  answer  it  intelligently  and  according  to  the  law  gov- 
erning the  subject.  But  no  instructions  as  to  the  effect  of 
an  answer  upon  the  ultimate  rights  of  the  parties  is  proper. 
Ryan  v.  Rockford  Ins.  Co.,  77  Wis.  611;  Ward  v.  C,  M.  & 
St.  P.  R.  Co.,  102  Wis.  215.1 


1  General  iyistmctions  on  the  law  of  the  case  are  never  proper  where  the 
jury  are  required  to  return  a  special  verdict  Stayner  V.  Joyce  (1889)  120 
Ind.  99,  22  N.  E.  89. 


CHAPTER  XV. 

JUDGMENT  NOTWITHSTANDING  THE  VERDICT. 

PLUNKETT  V.  DETROIT  ELECTRIC  RAILWAY 
COMPANY. 

Supreme  Court  of  Michigan.      1905, 
140  Michigan,  299. 

Montgomery,  J.  Plaintiff,  a  city  fireman,  was  pipeman 
on  a  hose  truck,  which  was  proceeding  west  on  High  street 
at  7 :45  p.  m.,  February  2,  1900,  when  it  was  struck  at  Hast- 
ings street  by  a  north-bound  Hastings  street  car  belonging 
to  defendant.  Plaintiff  was  thrown  and  injured.  Plain- 
tiff brought  this  action  to  recover  for  the  injuries  sus- 
tained, and  on  the  trial,  under  a  charge  submitting  the  ques- 
tion of  defendant's  negligence,  and  that  of  the  contributory 
negligence  of  the  plaintiff,  to  the  jury,  a  verdict  was  ren- 
dered in  favor  of  the  plaintiff  for  $2,500.  Defendant  there- 
upon entered  a  motion  for  judgment  in  its  favor  non  ob- 
stante veredicto,  for  the  reasons : 

^' First.  For  that  under  the  evidence  given  in  said  cause 
a  verdict  should  have  been  directed  by  the  court  in  favor  of 
the  defendant  at  the  conclusion  of  the  trial  thereof. 

'^Second.  For  that  this  court  charged  said  jury,  in  sub- 
stance and  effect,  that  the  said  plaintiff  by  and  through  the 
persons  with  whom  he  was  riding,  was  guilty  of  contrib- 
utory negligence." 

This  motion  was  granted,  and  judgment  non  obstante  ver- 
edicto was  entered  for  defendant.    Plaintiff  brings  error. 

The  defendant  and  the  court  below  mistook  the  practice 
at  the  common  law,  judgment  non  obstante  veredicto  could 
be  entered  only  when  the  plea  confessed  the  cause  of  action 
and  set  up  matters  in  avoidance  which  were  insufficient,  al- 
though found  true,  to  constitute  a  defense  or  bar  to  the  ac- 
tion. The  rule  was  later  relaxed,  and  made  to  apply  in 
favor  of  the  defendant,  so  that  it  is  now  generally  held  that 
the  defendant  is  entitled  to  a  judgment  non  obstante  vere- 

577 

T.  P.— 37 


578  Trial  Peactice  [Chap.  15 

dicto  when  the  plaintiff's  pleadings  are  not  sufficient  to  sup- 
port a  judgment  in  his  favor.  11  Enc.  PL  &  Prac.  912  et 
seq.  So,  too,  if  there  be  both  a  general  and  special  verdict, 
and  the  latter  be  inconsistent  with  the  former,  judgment 
may,  in  some  cases,  be  based  upon  the  special  verdict,  disre- 
garding the  general  verdict.  But  we  know  of  no  case  in 
which  it  is  proper  practice  to  enter  a  judgment  non  obstante 
veredicto,  unless  it  appears  on  the  record  that  the  verdict  of 
the  jury  cannot  be  supported  as  matter  of  law.  In  all 
other  cases  the  proper  practice  is  to  move  for  a  new  trial, 
or  review  the  case  on  writ  of  error  and  exceptions.  There 
must  be  either  a  general  or  special  verdict  to  support  a 
judgment,  or  the  pleadings  must  authorize  its  entry.  This 
question  is  ruled  by  Central  Sav.  Bank  v.  O'Connor,  132 
Mich  578.  See  also,  Schmid  v.  Village  of  Frankfort,  134 
Mich.  619,  and  County  of  Montmorency  v.  Putnam,  135 
Mich.  111.  Counsel  for  appellant  has  presented  the  case 
upon  the  assumption  that  the  circuit  court  had  power  to 
consider  the  question  which  he  assumed  to  passed  upon,  and 
has  pointed  out  that  the  court  mistook  the  rule  as  to  im- 
puted negligence,  and  that  his  holding  is  at  variance  with 
the  ruling  of  this  court  in  McKernan  v.  Railway  Co.,  138 
Mich.  519. 

Defendant's  counsel  'Contend  that  there  are  other  reasons 
why  the  verdict  should  have  been  for  the  defendant.  We 
must  decline  to  enter  upon  a  consideration  of  these  ques- 
tions. 

The  judgment  is  reversed,  and  the  case  will  be  remanded, 
that  the  plaintiff  may  move  for  judgment  on  the  verdict. 
Plaintiff  will  recover  costs. 

Moore,  C.  J.,  and  Grant,  Blair,  and  Ostrandeb,  JJ.,  con- 
curred. 


FLOYD  V.  COLOEADO  FUEL  &  IRON  COMPANY. 

Court  of  Appeals  of  Colorado.      1897, 

10  Colorado  Appeals,  54. 

BissELL,  J.,  delivered  the  opinion  of  the  court. 
Goorge  Floyd  was  employed  in  the  converting  mill  of  the 
Colorado  Fuel  &  Iron  Company,  and  was  a  foreman  in 


Chap.  15]  Judgment  Notwithstanding  Verdict  579 

charge  of  one  of  its  cupolas.  He  had  under  him  three  men. 
Their  duties  were  to  attend  to  the  cupolas,  withdraw^  the 
molten  iron  and  distribute  and  care  for  the  slag  or  refuse 
which  rose  to  the  surface  of  the  iron  after  it  was  melted. 
This  slag  or  refuse  was  drawn  off  through  what  is  termed  a 
cinder  notch  or  tap  hole  in  the  cupola  and  through  a  runner. 
These  runners  are  half  circular  troughs  of  iron,  about  eight 
feet  long  and  weigh  in  the  neighborhood  of  seven  or  eight 
hundred  pounds.  They  are  fastened  on  to  the  cupola  by  a 
collar.  The  runners  last  for  a  considerable  time  unless  the 
molten  iron  rises  too  high  and  flows  into  them.  This  will  eat 
them  out  and  necessitate  their  rej)lacement.  This  was  the 
condition  of  one  of  the  runners  in  charge  of  Floyd  in  June, 
1893.  It  was  observed  by  Crow,  the  superintendent  of  the 
con\"erting  mill.  Douglass  was  a  machinist  in  charge  of 
repairs  and  was  sent  by  Crow  to  put  in  a  new  runner. 
When  he  came  up  with  some  helpers,  he  called  on  Floyd  and 
his  men  to  assist  him  in  the  work.  While  doing  it  Floyd 
was  injured.  The  runner  slipped,  fell  on  his  foot,  mashed 
it,  and  he  was  disabled  for  a  long  time  to  do  his  usual  work 
or  any  other  wiiich  compelled  him  to  be  on  his  feet.  There 
is  very  considerable  dispute  between  Floyd  and  Crow  re- 
specting the  terms  of  the  order  and  the  obligations  and  du- 
ties of  the  parties,  but  according  to  the  view  which  we  take 
of  the  present  record  and  of  the  judgment  which  was  en- 
tered, we  are  not  concerned  with  these  details  or  with  the 
discrepancies  in  the  testimony  of  the  witnesses.  Floyd 
brought  this  suit  against  the  company  to  recover  damages. 
The  -case  went  to  trial  and  resulted  in  a  verdict  in  his  favor 
for  $1,250.  The  defendant  company  moved  for  a  nonsuit 
at  the  conclusion  of  the  plaintiff's  case,  and  a  direction  to 
the  jury  to  find  a  verdict  for  the  defendant  when  the  testi- 
mony was  closed.  Both  motions  were  denied.  After- 
wards the  company  filed  a  motion  for  a  new  trial  and  a  mo- 
tion for  judgment  noii  nhsfanfe  veredicto.  This  term  is 
used  because  it  was  so  denominated  by  the  mover,  and  in 
terms  was  an  application  for  judgment  dismissing  the  ac- 
tion notwithstanding  the  verdict  of  the  jury,  although  the 
grounds  of  it  remove  it  entirely  from  that  class  of  motions. 
It  was  wholly  based  on  considerations  foreign  to  such  ap- 
plications, and  its  eight  several  grounds  as  specifically 
stated,  were  rested  on  parts  and  portions  of  the  testimony, 


580  Trial  Peactice  [Chap.  15 

and  on  it  as  a  whole  the  defendant  attempted  to  maintain 
the  right  to  a  judgment  in  its  favor  notwithstanding  the  ver- 
dict because  from  the  evidence  sundry  and  divers  facts  ap- 
peared which  would  bar  a  recovery.  It  was  granted  and 
the  court  entered  judgment  for  the  defendant.  This  judg- 
ment and  order  of  the  court  is  the  only  error  assigned  and 
therefore  the  only  one  which  will  be  considered. 

In  support  of  the  assignment,  the  plaintiff  insists  that  a 
judgment  non  obstante  veredicto  may  not  be  entered  on  the 
motion  of  the  defendant.  Many  cases  are  cited  to  this 
proposition  and  thej^  uniformly  support  it.  It  is  urged  to 
the  contrary  that  the  rules,  proceedings,  and  practice  which 
prevailed  at  the  common  law  are  inapplicable  under  the 
code,  which  can  alone  be  looked  to,  to  ascertain  whether  the 
defendant  may  make  such  a  motion  and  obtain  relief  which 
was  formerly  granted  in  like  cases,  wherein  application  was 
made  by  one  entitled  to  present  it.  We  do  not  regard  the 
question  as  an  open  one.  We  discover  in  a  case  which  was 
not  called  to  our  attention  that  this  question  has  been  set  at 
rest  by  an  authoritative  decision  of  the  supreme  court  ren- 
dered since  the  code  went  into  effect,  and  the  practice  is  set- 
tled by  that  case.      Quimhy  v.  Boyd  et  al.,  8  Colo.  194. 

Therein  the  court  holds  that  this  motion  may  not  be 
made  by  the  defendant,  nor  can  he  obtain  relief  of  an  ana- 
logous character  otherwise  than  by  one  in  arrest  of  judg- 
ment. Since  this  is  true,  it  must  be  conceded  that  the  re- 
sult sought  could  not  be  secured  by  this  procedure.  The 
liberality  which  pervades  the  code  practice,  and  the  pur- 
pose and  intent  of  the  legislature  to  require  the  courts  to 
disregard  errors  of  an  unsubstantial  character  and  to  af- 
firm judgments  which  do  not  affect  the  substantial  rights 
of  the  parties,  compel  us  to  consider  another  question 
which  may  be  regarded  as  collateral  to  the  first.  This  is 
whether  the  motion  can  be  considered  as  one  in  arrest  of 
judgment.  But  this  reaches  only  those  defects  which  are 
apparent  on  the  face  of  the  record  and  which  are  not  cured 
by  a  verdict  or  saveid  by  a  failure  to  demur,  and  which 
do  not  require  the  consideration  of  matters  not  apparent 
in  ilie  record  proper,  nor  dependent  on  testimony  for  their 
solution.  We  have  been  able  to  find  no  exceptions  to  this 
rule.  1  Black  on  Judgments,  Sec.  98;  Commonivenlth  v. 
Watts,  4  Leigh,  G72;  Banner  v.  Sayne,  78  Ga.  467;  Brown 


Chap.  15]  Judgment  Notwithstanding  Verdict  581 

V.  Lee,  21  Ga.  159;  Balliett  v.  Humphreys,  78  Ind.  389; 
Sedgivick  v.  Daivkins,  18  Fla.  335;  Hardesty  v.  Price,  3 
Colo.  556. 

The  evidence  is  no  part  of  the  record  for  the  purposes 
of  such  a  motion.  For  this  reason  no  argument  to  sup- 
port it  can  be  predicated  on  the  theory  that  the  evidence  is 
insuffi'cient  to  warrant  the  recovery.  Bond  et  al.  v.  Dus- 
tin,  112  U.  S.  604. 

The  motion  does  not  attack  the  sufficiency  of  the  com- 
plaint as  a  statement  of  a  cause  of  action  nor  is  there  any 
other  defect  in  the  record  pointed  out  or  adverted  to  in 
the  argument  by  which  the  judgment  of  the  court  below 
can  be  sustained,  or  which  could  in  any  event  be  deemed 
sufficient  to  support  a  motion  in  arrest  of  judgment.  Since 
the  motion  is  neither  one  non  obstante  veredicto  nor  in 
arrest,  and  can  be  supported  on  neither  hypothesis,  there 
is  no  way  known  to  the  practice  by  which  the  defects  or  de- 
ficiencies in  the  case  made  by  the  proof  can  be  reached, 
except  by  a  motion  for  a  new  trial.  The  code  distinctly 
provides  that  wherever  the  evidence  is  insufficient  to  sup- 
port the  verdict,  the  court  shall  have  full  power  to  set  it 
aside  and  grant  a  new  trial.  It  is  an  easy  and  a  swift 
remedy,  available  to  the  parties  and  within  the  power  of 
the  court.  That  which  was  made  and  the  judgment  which 
was  entered  does  not  accord  with  the  practice  which  must 
prevail  in  such  cases.  Under  our  system  this  was  an  ac- 
tion for  the  recovery  of  damages,  and  as  such,  was  triable 
only  by  jury.  If  the  court  refuses  to  nonsuit  the  plaintiff 
or  to  direct  a  verdict  for  the  defendant,  the  case  must  go 
to  the  jury  and  the  issues  be  determined  by  them.  If 
their  conclusions  are  unsatisfactory,  or  the  court  deems 
them  unsupported  by  the  e^^dence,  it  has  full  power  to  set 
the  verdict  aside,  but  only  one  course  can  be  pursued.  The 
issues  must  be  resubmitted  to  another  jury.  It  is  the 
right  of  the  plaintiff  as  well  as  of  the  defendant  to  have 
questions  of  fact  settled  in  the  mode  provided  by  law.  We 
know  of  no  way  save  by  the  consent  of  parties  whereby  a 
suit  to  recover  damages  can  bo  otherwise  tried. 

The  court  erred  in  entering  the  judgment,  and  it  will 
therefore  be  reversed. 

Reversed. 


582  Trial  Peagtice  [Chap.  15 


CRUIKSHANK  V.  ST.  PAUL  FIRE  &  MARINE 
INSURANCE  COMPANY. 

Supreme  Court  of  Minnesota.      1899, 

75  Minnesota,  266. 

Mitchell,  J. 

This  was  an  action  to  recover  upon  a  ''hail  insurance 
policy,"  one  provision  of  which  was  that, 

''In  case  of  loss  by  hail  to  the  crops  insured,  the  assured 
shall  mail  a  written  notice  to  the  company  at  its  office  in 
the  city  of  St.  Paul,  Minn.,  within  forty-eight  hours  after 
the  time  of  such  loss,  stating  the  day  and  hour  of  the 
storm,  also  the  probable  damage  to  each  part  of  the  crops 
insured." 

So  far  as  material  for  the  purposes  of  this  appeal,  the 
defense  was  that  the  insured  had  not  given  notice  of  loss 
in  accordance  with  this  provision  of  the  policy. 

The  policy  contained  a  warranty  that  the  insured  was 
the  owner  of  all  the  land  upon  which  the  crops  covered  by 
the  policy  were  growing,  but  a  breach  of  this  warranty,  if 
any,  was  a  matter  of  defense,  and  no  such  defense  was 
pleaded. 

When  the  evidence  closed  the  defendant  moved  the 
court  to  direct  a  verdict  in  its  favor,  but  the  court  denied 
the  motion  and  submitted  the  case  to  the  jury,  which  found 
a  verdict  in  favor  of  the  plaintiff.  Thereupon  the  defend- 
ant made  a  motion,  not  in  the  alternative  for  judgment  not- 
withstanding the  verdict,  or,  in  case  that  should  be  denied, 
for  a  new  trial,  but  merely  for  judgment  notwithstanding 
the  verdict.  The  court  denied  the  motion,  and  from  the 
judgment  entered  upon  the  verdict  the  defendant  appealed. 

Originally  at  common  law,  judgment  notwithstanding 
the  verdict  could  only  be  granted  in  favor  of  the  plaintiff, 
the  remedy  in  favor  of  the  defendant  being  to  have  the 
judgment  arrested;  but  either  by  statute  or  by  judicial  re- 
laxation of  this  rule,  judgment  notwithstanding  the  ver- 
dict became  quite  generally  allowable  in  favor  of  either 
party.  But  in  either  case  the  motion  was  based  on  the 
record  alone,   and  the  granting  or  denying  it  depended 


Chap.  15]  Judgment  Notwithstanding  Vekdigt  583 

upon  tile  pleadings.  The  rendition  of  judgment  notwith- 
stading  the  verdict  was  discretionary  with  the  court.  It 
would  only  be  granted  when  it  was  clear  that  the  cause  of 
action,  or  the  defense,  put  upon  the  record  did  not,  in  point 
of  substance,  constitute  a  legal  cause  of  action  or  defense. 
It  was  never  granted  on  account  of  any  techincal  defect 
in  the  pleadings,  but  in  such  case  the  court  would  order  a 
repleader. 

By  enacting  laws  1895,  c.  320,^  the  legislature  was  not 
creating  a  new  remedy,  but  merely  extended,  as  has  been 
done  in  many  other  states,  the  common  law  remedy  to 
cases  where,  upon  the  evidence,  either  party  was  clearly 
entitled  to  judgment.  In  thus  extending  the  remedy  it 
must  be  presumed  that  the  legislature  intended  it  to  be  gov- 
erned by  the  same  rules  which  applied  when  it  was 
granted  upon  the  record  alone ;  that  is,  that  it  should  not  be 
granted  unless  it  clearly  appeared  from  the  whole  evi- 
dence that  the  cause  of  action,  or  defense,  sought  to  be  es- 
tablished could  not,  in  point  of  substance,  constitute  a  legal 
cause  of  action  or  a  legal  defense. 

The  court  has  acted  on  this  construction  of  the  statute 
and  refused  to  order  judgment  even  where  there  was  a 
total  absence  of  evidence  on  some  material  point,  but  where 
it  appeared  probable  that  the  party  had  a  good  cause  of 
action  or  defense,  and  that  the  defect  in  the  evidence  could 
be  supplied  on  another  trial.      This  is  just  such  a  case. 

From  the  record  it  appears  probable  that  the  plaintiff 
has  a  good  cause  of  action  and  that  the  defects,  if  any,  in 
the  evidence,  are  largely  technical  and  could  be  supplied 
on  another  trial.  The  alleged  defects  in  the  evidence 
suggested  are  of  the  following  character:  that  the  letter 
from  plaintiff's  father  to  Kenaston  was  not  formally  in- 
troduced in  evidence,  that  there  was  no  evidence  that  the 

1  The  statute  is  as  follows:  "In  all  cases  where  at  the  close  of  the  testimony 
in  the  case  tried  a  motion  is  made  by  either  party  to  the  suit  requesting  the 
trial  court  to  direct  a  verdict  in  favor  of  the  party  making  such  motion,  which 
motion  \yas  denied,  the  trial  court  on  motion  made  that  judgment  be  en- 
tered notwithstanding  the  verdict,  or  on  motion  for  a  new  trial,  shall  order 
judgment  to  be  entered  in  favor  of  the  party  who  was  entitled  to  have 
a  verdict  directed  in  his  or  its  favor;  and  the  supreme  court  of  the  state  on 
appeal  from  an  order  granting  or  denying  a  motion  for  a  new  trial  in  the 
action  in  which  such  motion  was  made  may  order  and  direct  judgment  to  be 
entered  in  favor  of  the  party  who  was  entitled  to  have  such  verdict  directed 
in  his  or  its  favor  whenever  it  shall  appear  from  the  testimony  that  the 
party  was  entitled  to  have  such  motion  granted." 


584  Trial  Practice  [Chap.  15 

letter  from  Kenaston  to  the  defendant  was  never  mailed, 
and  that  there  was  no  evidence  that  the  person  who  came 
to  adjust  the  loss  was  McClure,  or  that  M.cClure  was  at 
that  time  defendant's  adjuster.  The  statute  permits  a 
party  to  make  his  motion  in  the  alternative.  Defendant 
has  elected  not  to  do  so,  but  to  stand  exclusively  on  its 
right  to  judgment  in  its  favor  notwithstanding  the  verdict 
against  it.  Not  being  entitled  to  this  relief,  it  is  not  en- 
titled, at  least  as  a  matter  of  right,  to  a  new  trial  on  the 
ground  of  the  insufficiency  of  the  evidence.  Indeed,  coun- 
sel for  the  defendant  conceded  this  upon  the  argument. 
Judgment  affirmed. 


CHAPTER  XVI. 
ARREST  OF  JUDGMENT. 

Section  1.    For  What  Defects? 

PELICAN  ASSURANCE   COMPANY  V.  AMERICAN 
FEED  AND  GROCERY  COMPANY. 

Supreme  Court  of  Tennessee.      1909, 

122  Tennessee,  652. 

Mr.  Chief  Justice  Beard  delivered  the  opinion  of  the 
^^ourt. 

In  the  case  at  bar  errors  are  assigned  upon  the  action  of 
the  trial  judge  in  admitting  over  objection  incompetent 
testimony,  in  overruling  a  motion  for  peremptory  instruc- 
tion, in  giving  .certain  instructions  to  the  jury,  and  failing 
to  grant  requests  that  were  submitted.  It  will  be  ob- 
served that  these  errors  if  committed,  occurred  in  the  trial 
of  the  cause,  and  would  have  constituted  grounds  of  a  mo- 
tion for  a  new  trial,  made  in  the  court  below,  to  the  end 
that  a  retrial  might  be  obtained,  or,  failing  in  this,  then  to 
preserve  the  same  in  the  record,  so  that  the  ruling  of  the 
trial  judge  in  declining  the  motion  might  be  preserved  to 
the  plaintiff  in  error.  Railroad  v.  Johnson,  114  Tenn. 
633,  88  S.  W.  169.  Resting  upon  matters  extrinsic  to  the 
technical  record,  they  could  only  be  preserved  for  review 
in  this  court  by  a  properly  filed  bill  of  exceptions.  If, 
as  is  contended  by  counsel  for  plaintiff  in  error,  they  can 
here  be  made  the  subject  of  investigation,  by  reason  of  the 
motion  in  arrest  having  been  overruled,  then  we  can  see 
no  distinction  between  that  and  a  motion  for  new  trial; 
for  the  very  errors  that  are  now  made  the  subject  of  com- 
plaint are  those  which  would  have  been  properly  raised 
on  this  latter  motion.  It  is  apparent  that,  to  secure  a  re- 
versal on  account  of  these  errors,  it  would  be  necessary  to 
lools  beyond  the  ''face  of  the  record"  into  the  evidence  in- 
troduced.     This  cannot  be  done.      It  is  well  settled  by  the 

585 


586  Trial  Practice  [Cliap.  IG 

authorities  that  a  motion  in  arrest  of  judgment  lies  alone 
for  some  error  which  vitiates  the  proceeding,  or  is  of  so 
serious  a  character  that  judgment  should  not  be  rendered. 
It  "can  onl.y  be  maintained  for  a  defect  upon  the  face  of 
the  record,  and  the  evidence  is  no  part  of  the  record  for 
this  purpose."  Bond  v.  Dustin,  112  U.  S.  604,  5  Sup.  Ct. 
296,  28  L.  Ed.  835;  Van  Stone  v.  Stilhvell  E.  T.  C.  Co., 
142  U.  S.  128,  12  Sup.  Ct.  181,  35  L.  Bd.  961;  23  Cyc.  825. 
Applying  this  rule  of  correct  procedure  to  the  present 
case,  it  follows  that  the  judgment  must  be  affirmed. 


GRAY  V.  COMMONWEALTH. 

Supreme  Court  of  Appeals  of  Virginia.      1895. 
92  Virginia,  772. 
RiELY,  J.,  delivered  the  opinion  of  the  court. 

After  the  jury  had  rendered  their  verdict  the  prisoner 
moved  the  'Court  in  arrest  of  judgment,  on  the  ground  that 
one  of  the  jurors  was  incompetent ;  which  motion  the  court 
overruled.  It  appears  from  the  bill  of  exceptions  that 
the  juror,  when  examined  on  his  voir  dire,  suggested  him- 
self that  he  might  not  be  competent  to  serve,  as  he  was 
deputy  sheriff  when  the  killing  took  place,  which  was 
more  than  two  years  prior  to  the  trial,  and  had  the  war- 
rant for  the  arrest  of  the  prisoner,  but,  on  being  fully  ex- 
amined by  the  court,  answered  that  he  made  no  arrest 
and  had  not  formed  or  expressed  any  opinion  as  to  the 
guilt  or  innocence  of  the  prisoner,  and  could  give  him  a 
fair  and  impartial  trial.  PTe  was  thereupon  accepted  by 
the  court  as  a  juror,  without  ol)jection  from  either  side. 
The  prisoner  claimed  that  ho  had  discovered,  after  the 
iurv  was  sworn,  that  the  said  juror  had  not  only  the  war- 
rant for  his  arrest,  but  also,  with  a  number  of  other  per- 
sons, had  pursued  him  for  some  days,  and  had  several 
times  visited  the  neighborhood  in  searcli  of  him.  It  is 
not  the  province  of  a  motion  in  arrest  of  judgment  to  cor- 
rect an  error  like  the  one  alleged.      That  lies  only  to  cor- 


Sec.  1]  Aekest  or  Judgment  587 

rect  an  error  that  is  apparent  on  the  face  of  the  record. 
Commonwealth  v.  Stephen,  4  Leigh,  679;  Watt's  Case,  Id. 
672;  Bishop  on  Cr.  Pro.  (3d  ed.),  sections  1282  and  1285; 
and  4  Minor's  Institutes  (3d  ed.)  Pt.  I,  939.  The  ground 
of  the  objection  nowhere  appears  in  the  record.  This 
bill  of  exceptions  was  not,  therefore,  properly  taken.  But 
even  if  the  proper  proceedings  had  been  resorted  to,  the 
statement  set  forth  in  the  bill  of  exceptions,  which  is  not 
supported  by  the  affidavit  of  the  prisoner  or  any  one  else, 
did  not  disqualify  the  juror  or  furnish  ground  for  a  new 
trial,  and  certainly  not  when  the  objection  was  not  brought 
to  the  attention  of  the  court  until  after  the  verdict.  Bris- 
tow's  Case,  supra. 

The  judgment  of  the  Circuit  Court  must  be  affirmed. 

A-ffirmed. 


HUBBARD  V.  RUTLAND  RAILROAD  COMPANY. 

Supreme  Court  of  Vermont.      1907. 

80  Vermont,  462. 

RowELL,  C.  J.  Case  for  negligently  injuring  the  plaintiff 
by  a  collision  of  trains,  on  one  of  which  he  was  a  passen- 
ger. Plea,  the  general  issue,  and  trial  by  jury.  Ver- 
dict and  judgment  for  the  plaintiff.  The  defendant  con- 
ceded the  right  of  recovery,  but  denied  the  claim  for  dam- 
ages, both  in  character  and  extent,  in  manner  and  form 
alleged. 

The  defendant  moved  in  arrest,  for  that  *'the  verdict  is 
largely  based  on  facts  not  in  issue  under  the  declaration 
and  concessions  of  the  defendant  made  on  trial  and  ac- 
cepted by  the  plaintiff,  and  varies  materially  from  the  is- 
sue made  on  trial,  and  finds  facts  foreign  to  such  issue, 
and  is  for  for  entire  damages,  without  discrimination  be- 
tween facts  made  material  and  immaterial  by  the  issue, 
and  is  insufficient." 

It  is  conceded  that  when  the  motion  goes  to  defects  in 


588  Tkial  Pkactice  [Chap.  16 

the  pleadings,  an  inspection  of  the  record  alone  is  to  gov- 
ern, and  that  the  evidence  cannot  be  looked  into.  But 
it  is  contended  that  when  the  motion  goes  to  defects  in  the 
verdict,  as  this  motion  does,  the  rule  is  different;  that  the 
verdict  is  a  part  of  the  record,  but  any  defect  in  it  is  not 
apparent  on  its  face ;  that  it  is  not  a  pleading,  and  if  a  mo- 
tion in  arrest  will  lie  for  defects  in  it,  it  follows  that  it 
must  be  looked  into  to  discover  those  defects,  and  that  this 
necessitates  an  examination  of  the  evidence  upon  which 
it  rests. 

That  a  judgment  may  be  arrested  for  defects  in  the  ver- 
dict is  clear.  But  a  motion  for  that  purpose  stands  like  a 
motion  in  arrest  for  defects  in  the  pleadings,  and  like  that, 
must  be  tested  by  what  appears  on  the  face  of  the  record, 
of  which  the  verdict  is  a  part.  Mr.  Gould  says,  in  speak- 
ing of  Lord  Mansfield's  disapprobation  of  the  rule,  that 
when  there  are  good  and  bad  counts,  and  a  general  ver- 
dict for  the  plaintiff  for  entire  damages,  without  discrim- 
inating between  the  counts,  no  rule  appears  to  be  more 
clearly  warranted  by  the  original  principles  of  the  law 
than  that  the  judgment,  which  is  only  an  interference  of 
law  from  the  facts  ascertained  upon  the  record,  must  al- 
ways be  formed  from  the  face  of  the  record  itself,  and 
from  that  alone;  and  as  the  jury  must  be  presumed  to 
know  nothing  of  the  sufficiency  or  the  insufficiency  of 
counts,  the  conclusion  seems  perfectly  just,  in  legal  theory, 
that  the  damages  are  as  likely  to  have  been  assessed  in 
whole  or  in  part  on  the  bad  count  as  on  the  good  count. 
r!--id's  PI.  c.  X,  sec.  58,  n.  (7). 

Mr.  Tidd  says  that  the  only  ground  for  arresting  judg- 
ment at  this  day  is,  some  matter  intrinsic,  appearing  on 
the  face  of  the  record,  that  would  render  the  judgment 
erroneous  and  reversible;  for  though  it  seems  to  have  been 
otherwise  formerlv,  yet  it  is  now  settled  that  judgment 
cannot  be  arrested  for  extrinsic  or  foreign  matter  not  ap- 
nenring  on  the  face  of  the  record,  but  that  courts  are  to 
iudge  upon  the  record  itself,  that  their  successors  may 
know    the    frrounds    of    their    judgment.        2    Tidd's    Pr. 

'/'OIR)     *      #      • 

The  defendant  contends,  as  we  have  seen,  that  if  the  tes- 
timony cannot  be  looked  into  when  the  verdict  does  not 
show  the  defect  on  its  face,  there  can  be  no  remedy  in  such 


Sec.  1]  Abrest  of  Judgment  589 

a  case  by  motion  in  arrest.  And  that  is  true  if,  as  here, 
if  anywhere,  the  defect  appears  only  in  the  testimony,  for 
that  is  not  a  part  of  the  record,  and  the  court  must  judge 
upon  the  record,  and  upon  that  alone.  But  the  verdict 
being  a  part  of  the  record,  if  the  record  as  a  whole  shows 
the  defect,  it  is  enough.  And  it  will  show  it,  and  must 
show  it,  if  it  is  a  defect  that  the  law  recognizes  as  ground 
for  a  motion  in  arrest.  Thus,  if  the  verdict  varies  sub- 
stantially from  the  issue,  as  if,  instead  of  finding  the  mat- 
ter in  issue,  the  jury  finds  something  foreign  to  the  issue, 
the  judgment  must  be  arrested,  for  the  court  cannot  tell 
for  which  party  judgment  should  be  rendered.  Here  the 
verdict  does  not  show  the  defect  on  its  face,  but  taken 
with  the  rest  of  the  record,  which  shows  what  the  issue 
was,  the  record  as  a  whole  shows  the  defect  on  its  face. 
The  same  is  true  when  the  verdict  finds  only  part  of  the 
matter  in  issue,  omitting  to  find  either  way  another  ma- 
terial part.  These  instances  are  sufficient  to  show  how 
defects  in  a  verdict  not  apparent  on  its  face  are  made  to 
appear  for  the  purposes  of  a  motion  in  arrest. 
Judgment  affirmed. 


BULL  V.  MATHEWS. 

Supreme  Court  of  Rhode  Island.      1897. 

20  Rhode  Island,  100. 

TiLLiNGHAST,  J.  This  is  a  motion  in  arrest  of  judg- 
ment on  the  ground  of  a  misjoinder  of  causes  of  action. 
The  action  is  trespass  on  the  case  for  trover  and  conver- 
sion, and  the  declaration  contains  a  count  in  trover  and 
conversion,  and  also  the  ordinary  counts  in  assumpsit.  At 
the  trial  of  the  case  in  the  District  Court  a  decision  was 
rendered  in  favor  of  the  plaintiff  for  $19.10  and  costs;  but 
there  is  nothing  in  the  record  to  show  whether  the  judg- 
ment was  based  on  the  count  in  trover  and  conversion, 
or  on  those  in  assumpsit.  No  plea  was  filed  in  the  case, 
but  as  the  defendant  entered  an  appearance  the  general 
issue  is  deemed  to  be  filed.      Gen.  Laws  E.  I.,  cap.  237,  sec. 


590  Trial  Peactice  [Chap.  16 

3.  But  whether,  in  this  case  the  general  issue  as  to  the 
connt  in  trover,  which  would  be  not  gnilty,  or  as  to  the 
counts  in  assumpsit,  which  would  be  non  assumpsit,  is  in, 
we  have  no  means  of  determining.  Within  five  days  after 
the  rendition  of  said  decision  the  defendant  filed  his  mo- 
tion in  arrest  of  judgment  in  the  District  Court,  where- 
upon the  case  was  certified  to  this  court. 

It  is  a  familiar  rule  of  common-law  pleading  that  counts 
sounding  in  tort  cannot  properly  be  joined  with  counts 
sounding  in  contract,  and  also  that  such  misjoinder  is 
fatal,  not  only  on  demurrer,  but  also  on  motion  in  arrest 
of  judgment.  Ency.  PI.  &  Pr.  vol.  2,  p.  803,  and  cases 
cited;  Haskell  v.  Boiven,  44  Vt.  579.  The  effect  of  such 
misjoinder  is  clearly  expressed  in  Chit.  PI.  9  Am.  ed.  206, 
as  follows:  ''The  consequences  of  a  misjoinder  are  more 
important  than  the  circumstances  of  a  particular  count 
being  defective;  for  in  a  case  of  misjoinder,  however  per- 
fect the  counts  may  respectively  be  in  themselves,  the 
declaration  will  be  bad  on  demurrer  or  in  arrest  of  judg- 
ment, or  upon  error.  See  also  Gould's  PL  cap.  4,  sec.  87, 
and  cases  cited. 

The  ordinary  test  for  determining  whether  different 
causes  of  action  may  be  joined  is  to  inquire  whether  the 
same  plea  may  be  pleaded  and  the  same  judgment  given 
on  all  the  counts  of  the  declaration;  and  unless  this  ques- 
tion can  be  answered  in  the  affirmative  the  counts  cannot 
be  joined.  See  Drury  v.  Merrill,  ante,  2.  See  also  Court 
of  Probate  v.  Sprague,  3  R.  I.  205. 

A  Implying  this  test  to  the  case  at  bar,  it  will  at  once  be 
seen  that  there  is  a  fatal  misjoinder.  If  the  pleader  in 
this  case  had  simply  omitted  to  strike  out  the  money  counts 
which  are  printed  in  the  writ,  perhaps  we  might  disre- 
gard them;  but  as  he  has  filled  them  out  in  the  ordinary 
way  where  the  case  is  assumpsit,  we  feel  bound  to  presume 
that  he  intended  to  rely  thereon,  as  well  as  on  the  count 
in  trover. 

It  is  true  that,  since  the  case  was  certified  to  this  court, 
the  plaintiff's  counsel  has  filed  an  affidavit  setting  forth 
that  by  reason  of  mistake  and  oversight  he  neglected  to 
strike  out  the  money  counts,  and  also  that  at  the  trial  in 
the  District  Court,  the  o\'idonce  introduced  was  confined 
to  the  count  in  trover,  which  was  the  only  count  relied  on. 


Sec.  1]  Abrest  of  Judgment  591 

But  as  a  motion  in  arrest  of  judgment  raises  only  those 
objections  which  are  apparent  upon  the  re<}ord;  State  v. 
Paul,  5  R.  I.  189 ;  Black  on  Judgments,  vol.  1,  Sees.  96-8 ; 
and  as  the  affidavit  forms  no  part  of  the  record,  we  are 
not  at  liberty  to  consider  it. 
Judgment  arrested. 


PITTSBURGH,  CINCINNATI,  CHICAGO  &  ST.  LOUIS 
RAILWAY  COMPANY  V.  CITY  OF  CHICAGO. 

Appellate  Court  of  Illinois.      1908, 

144  Illinois  Appellate,  293. 

Mr.  Peesiding  Justice  Thompson  delivered  the  opinion 
of  the  court. 

This  is  an  action  in  case  begun  the  16th  day  of  May, 
1895,  in  the  Circuit  Court  of  Cook  county,  Illinois,  by  the 
Pittsburgh,  Cincinnati,  Chicago  &  St.  Louis  Railway  Com- 
pany against  the  city  of  Chicago  to  recover  three-fourths 
of  the  damages  sustained  by  it  on  account  of  the  destruc- 
tion of  property  of  which  "the  plaintiff  was  possessed  as 

of  its  own  property,"  during  riots  there  in  July,  1894. 

********** 

The  action  is  based  ujoon  a  statute  of  this  state  provid- 
ing as  follows: 

"That  whenever  any  building  or  other  real  or  personal 
property  except  property  in  transit,  shall  be  destroyed  or 
injured  in  consequence  of  any  mob  or  riot  composed  of 
twelve  or  more  persons,  the  city,  or  if  not  in  a  city  then 
the  county  in  which  such  property  was  destroyed,  shall  be 
liable  to  an  action  by  or  in  behalf  of  the  party  whose  prop- 
erty was  thus  destroyed  or  injured  for  three-fourths  of  the 
damages  sustained  by  reason  thereof. 

"No  person  or  corporation  shall  be  entitled  to  recover  in 
any  such  action  if  it  shall  appear  on  the  trial  thereof  that 
such  destruction  or  injury  of  property  was  occasioned  or 
in  any  way  aided,  sanctioned  or  pennitted  by  the  careless- 
ness, neglect  or  wrongful  act  of  such  person  or  corpora- 


592  Teial  Pkacticb  [Chap.  16 

tion ;  nor  shall  any  person  or  corporation  be  entitled  to  re- 
cover any  damages  for  any  destruction  or  injury  of  prop- 
erty as  aforesaid,  unless  such  party  shall  have  used  all 
reasonable  diligence  to  prevent  such  damage. 

**No  action  shall  be  maintained  under  the  provisions  of 
this  act,  by  any  person  or  corporation  whose  property 
shall  have  been  destroyed  or  injured  as  aforesaid,  unless 
notice  of  claim  for  damages  be  presented  to  such  city  or 
county  within  thirty  days  after  such  loss  or  damage  oc- 
curs and  such  action  shall  be  brought  within  twelve  months 
after  such  destruction  or  injury  occurs,  *    *    *" 

It  is  urged  the  motion  in  arrest  of  judgment  should  have 
been  sustained  because  the  declaration  is  insufficient  in 
that  it  does  not  state  a  cause  of  action  by  failing  to  state 
facts  but  only  stating  conclusions  in  several  particulars. 
Tt  is  argued  (1)  ''that  ownership  is  not  alleged  as  a  con- 
clusion nor  by  way  of  uncertain  or  incomplete  statement, 
by  way  of  argument,  by  evasion,  nor  is  there  any  allega- 
tion from  which  it  can  necessarily  be  inferred.  All  that 
is  alleged  is  possession;"  (2)  "that  the  declaration  should 
locate  the  mob  as  within  the  city  of  Chicago;"  (3)  the  stat- 
ute ''requires  that  such  party  shall  have  used  all  reason- 
able diligence  to  prevent  such  damage,"  while  the  declar- 
ation only  avers  that  the  injury  was  not  occasioned  through 
any  neglect  on  the  part  of  the  plaintiff  to  use  reasonble  dil- 
igence to  prevent  such  injury;  (4)  that  "the  declaration 
does  not  aver  that  a  notice  of  plaintiff's  claim  for  damages 
was  presented  to  the  city  within  thirty  days  after  the  de- 
struction or  damage  to  its  property  occurred." 

The  numerous  alleged  defects  in  the  declaration  which 
have  been  presented  for  our  consideration  are  purely  for- 
mal. The  defects  complained  of  could  not  have  been 
reached  by  a  general  demurrer.  They  could  only  have 
been  grounds  for  a  special  demurrer  assigning  the  causes. 
A  judgment  after  verdict  can  only  be  arrested  for  substan- 
tial faults.  All  defects  which  would  not  have  been  fatal 
on  a  general  demurrer  are  cured  by  pleading  to  the  issue, 
and  are  aided  by  verdict.  When  the  pleading  states  the 
essential  requisites  of  a  cause  of  action,  the  court  will  pre- 
sume that  the  particular  fact  or  circumstance  which  ap- 
pears to  be  defectively  or  imperfectly  stated  or  omitted 


Sec.  1]  Aekest  of  Judgment  593 

was  proved  at  the  trial.  A  defective  or  inaccurate  state- 
ment of  a  cause  of  action  is  cured  by  a  general  verdict  but 
where  no  cause  of  action  is  stated  a  verdict  will  not  cure 
the  defect.      Gould  on  PI.,  chap.  X. 

Counsel  for  appellant  state  in  their  original  argument 
(p.  21):  ''The  declaration  states  the  name  of  the  plain- 
tiff. It  states  that  'said  plaintiff  was  possessed  as  of  its 
own  property,'  of  the  railway  equipment,  etc.,  described 
and  claimed  to  have  been  injured  or  destroyed,  and  for 
which  judgment  is  asked.  It  also  avers  'that  the  property 
of  the  plaintiff  was  destroyed  or  injured.'  These  aver- 
ments only  amount  to  an  assertion  that  the  plaintiff  ivas 
the  owner  of  the  property  mentioned  and  that  the  legal 
title  was  in  the  plaintiff.  Such  an  averment  is  only  a 
mere  statement  of  a  conclusion  of  law  and  amounts  to  noth- 
ing as  an  averment."  At  common  law  the  possessor  of 
personal  property  is  prima  facie  the  owner  of  the  property. 
The  averments  that  "iDlaintiff  was  possessed  as  of  its  own 
property,"  and  "the  property  of  the  plaintiff  was  de- 
stroyed or  injured,"  amount  to  an  allegation  of  owner- 
ship by  the  plaintiff,  when  the  declaration  is  first  ques- 
tioned after  verdict.  Beigen  v.  Biggs,  34  111.  170.  On  a 
motion  in  arrest  of  judgment  "every  intendment  will  be 
indulged  in  favor  of  the  declaration,  and  if  it  contain.^ 
terms  sufficiently  general  to  comprehend  by  fair  and  rea- 
sonable intendment  any  matter  necessary  to  be  proved,  and 
without  proof  of  which  the  jury  could  not  have  given  the 
verdict,  the  want  of  an  express  averment  in  the  declara- 
tion has  been  cured  by  the  verdict."  Danley  v.  Hihhard. 
222  111.  88;  Fountain  Head  Drain  Dist  v.  Wright,  228  111. 
208.  We  hold  that  the  conclusion  to  be  drawn  from  the 
averments  of  the  declaration  is  that  the  plaintiff  is  the 
owner  of  the  property  destroyed  or  injured. 

The  declaration  avers  that  "within  the  territorial  limits 
of  tlie  city  of  Chicago,  aforesaid,  in  consequence  of  a  cer- 
tain mob  or  mobs,  riot  or  riots,  each  of  which  was  then 
and  there  composed  of  twelve  or  more  persons  within  the 
territorial  limits  of  said  city  of  Chicago,  a  large  quantitv." 
etc.  This  language  locates  the  mob  within  the  city  of  Chi- 
cago in  the  language  of  the  statute  and  fully  answers  the 
second  reason  urged  in  arrest  of  judgment. 

We  do  not  think  it  necessary  to  comment  on  the  third 

T.  P.— 38 


594  Trial  Peacticb  [Chap.  16 

and  fourth  reasons  urged  in  arrest  of  the  judgment  further 
than  to  state  that  under  the  rule  announced  in  Danley  v. 
Hihhard,  supra,  the  allegations  contained  in  the  declara- 
tion concerning  these  matters  are  sufficiently  general  to 
comprehend  by  fair  and  reasonable  intendment  the  mat- 
ters necessary  to  be  proved  in  the  respects  complained  of, 
and  the  court  did  not  err  in  overruling  the  motion. 

Ajjirmed} 

1  The  same  rule  applies  to  matters  in  abatement.  They  cannot  be  availed 
of  on  motion  in  arrest.  Hiiger  v.  Cunningham  (1906)  126  Ga.  684,  56  S.  E. 
(i4;  Hawkins  v.  Hughes  (1882)  87  N.  C.  115. 


Section  2.    Time  foe  Making  Motion. 

CHICAGO  AND  ALTON  EAILROAD  COMPANY 
V.  CLAUSEN. 

Supreme  Court  of  Illinois.       1898. 

173  Illinois,  100. 

Me.  Justice  Caetweight  delivered  the  opinion  of  the 
court : 

Appellee  brought  this  suit  against  appellant  to  recover 
damages  for  injuries  alleged  to  have  been  sustained  by  the 
starting  of  a  train  on  which  he  was  a  passenger,  while  he 
was  attempting  to  get  off  at  appellant's  station  at  Gard- 
ner, Illinois.  There  was  a  judgment  for  appellee,  which 
has  been  affirmed  by  the  Appellate  Court. 

It  is  argued  at  much  length  that  the  trial  court  improp- 
erly overruled  a  demurrer  to  the  first  original  count  and 
five  amended  counts  of  the  declaration  upon  which  the  case 
finally  went  to  trial.  No  error  has  been  assigned  upon 
such  ruling  on  the  demurrer,  either  in  the  Appellate  Court 
or  this  court,  and  none  could  be  so  assigned  for  the  rea- 
son that  after  the  demurrer  was  overruled  the  defendant 
pleaded  the  general  issue  and  thereby  raised  an  issue  of 
fact,  which  was  tried.  It  has  always  been  the  rule  in  this 
State  that  if  a  party  wishes  to  have  the  action  of  a  court 


Sec.  2]  Arrest  of  Judgment  595 

in  overruling  his  demurrer  reviewed  in  this  court  he  must 
abide  by  tlie  demurrer.  By  pleading  over  he  waives  the 
demurrer  and  the  right  to  assign  error  upon  the  rul- 
ing. *     *     * 

Defendant  made  a  motion  in  arrest  of  judgment,  which 
was  overruled,  and  that  is  assigned  for  error;  but  having 
once  had  the  judgment  of  the  court  on  its  demurrer  it  could 
not  again  invoke  it  for  the  same  reasons  by  motion  in  ar- 
rest. After  a  judgment  overruling  a  demurrer  to  a  de- 
claration there  can  be  no  motion  in  arrest  of  judgment  on 
account  of  any  exception  to  the  declaration  that  might 
have  been  taken  on  the  argument  of  the  demurrer.  Rouse 
V.  Coimty  of  Peoria,  2  Gilm.  99;  Quincy  Coal  Co.  v.  Hood, 
11  111.  68;  American  Express  Co.  v.  Pinchney,  supra;  In- 
dependent Order  of  Mutual  Aid  v.  Paine,  122  111.  625.^ 

While  the  defendant,  by  pleading  over,  waived  its  de- 
murrer and  the  right  to  assign  error  upon  the  ruling  of 
the  court  on  the  demurrer,  it  did  not  waive  innate  and  sub- 
stantial defects  in  the  declaration  which  would  render  the 
declaration  insufficient  to  sustain  a  judgment,  and  the  ques- 
tion whether  it  is  so  far  defective  may  be  considered  under 
the  assignments  of  error.  The  question  which  may  be 
thus  presented  is  not  as  broad  as  those  questions  which 
may  be  raised  by  demurrer,  for  the  reason  that  defects 
in  pleading  may  sometimes  be  aided  by  the  pleadings  of 
the  opposite  party,  or  be  cured  by  the  Statute  of  Amend- 
ments and  Jeofails,  or  by  intendment  after  verdict.  The 
objections  made  to  the  various  counts  of  the  declaration 
are,  that  the  statements  therein  are  too  general  and  in 
definite  in.  failing  to  show  how  the  starting  of  the  train 
operated  to  throw  plaintiff  from  it  and  in  what  manner  it 
was  started,  and  that  the  various  counts  allege  certain  du- 
ties on  the  part  of  the  defendant,  and  charge  the  neglect 
and  violation  of  other  duties,  and  the  doing  of  other  acts 
foreign  to  the  duties  so  alleged,  as  the  jause  of  the  sup- 

1  This  is  the  orthoilox  rule,  and  seems  to  be  based  on  no  better  reason  tlian 
that  suggested  in  the  followinrr  qijotntion  from  Tidd :  "After  judgment 
on  demurrer,  there  can  be  no  motion  in  arrest  of  judgment,  for  any  exception 
that  might  have  been  taken  on  arguing  the  demurrer;  the  reason  is,  that  the 
matter  of  law  having  been  already  settled,  by  the  solemn  determination  of  the 
court,  they  will  not  afterwards  suffer  anyone  to  come  as  amicus  curiae,  and  tell 
them  that  the  judgment  which  they  gave  on  mature  deliberation  is  wrong; 
but  it  is  otherwise  after  iudgTTient  bv  default,  for  that  is  not  given  in  so  sol- 
emn a  manner."      2  Tidd'e  Practice,  *918. 


596  Trial  Practice  [Chap.  16 

posed  injuries.      So  far  as  the  declaration  is  defective  in 
the  respects  complained  of,  the  defendant's  plea  of  the 
general  issue,  of  course,  could  not  aid  or  supply  any  omis- 
sion or  informality  therein.      It  is  also  true  that  the  Stat- 
ute of  Amendments  and  Jeofails  does  not  extend  to  cure 
defects  which  are  clearly  matters  of  substance.      It  pro- 
vides that  judgment  shall  not  be  reversed  for  want  of  any 
allegation  or  averment  on  account  of  which  omission  a 
special  demurrer  could  have  been  maintained,  but  it  does 
not  protect  a  judgment  by  default  against  objections  for 
matter   of   substance.        Many   such   objections,   however, 
have  always  been  cured,  at  the  common  law,  by  a  verdict. 
At  the  common  law,  independently  of  any  statute,  the  rule 
was  and  is,  ''that  where  there  is  any  defect,  imperfection 
or  omission  in  any  pleading,  whether  in  substance  or  form, 
which  would  have  been  a  fatal  objection  upon  demurrer, 
yet  if  the  issue  joined  be  such  as  necessarily  required,  on 
the  trial,  proof  of  the  facts  so  defectively  or  imperfectly 
stated  or  omitted,  and  without  which  it  is  not  to  be  pre- 
sumed that  either  the  judge  would  direct  the  jury  to  give 
or  the  jury  would  have  given  the  verdict,  such  defect,  im- 
perfection or  omission  is  cured  by  the  verdict."       (1  Chit- 
ty's  PI.  673.)      This  rule  was  quoted  and  approved  in  Kee- 
gan  v.  Kinnare,  123  111.  280,  and  Chicago  and  Eastern  Illi- 
nois Railroad  Co.  v.  Eines,  132  id.  161.       The  intendment 
in  such  case  arises  from  the  joint  effect  of  the  verdict  and 
the  issue  upon  which  it  was  given,  and  if  the  declaration 
contains  terms  sufficiently  general  to  comprehend,  by  fair 
and  reasonable  intendment,   any  matter  necessary  to   be 
proved,  and  without  proof  of  which  the  jury  could  not  have 
given  the  verdict,  the  want  of  an  express  statement  of  it  in 
the  declaration  is  cured  by  the  verdict.       Under  this  rule 
a  verdict  will  aid  a  defective  statement  of  a  cause  of  ac- 
tion, but  will  never  assist  a  statement  of  a  defective  cause 
of  action.       (1  Chitty's  PI.  681.)       Where  the  declaration 
and  the  issue  joined  upon  it  do  not  fairly  impose  the  duty 
on  the  plaintiff  to  prove  the  omitted  fact,  the  omission  will 
not  be  cured,  {Joliet  Steel  Co.  v.  Shields,  134  111.  209),  and 
if,  with  all  the  intendments  in  its  favor,  the  declaration  is 
so  defective  that  it  will  not  sustain  a  judgment,  such  de- 
fects mav  be  taken  advantage  of  on  error.      {Wilson  v.  My- 
ricTc,  26  111.  34;  Scho  field  v.  Settley,  31  id.  515;  Chicago  and 


Sec.  2]  Akrest  of  Judgment  597 

Eastern  Illinois  Railroad  Co.  v.  Hines,  supra;  Culver  v. 
Third  Nat.  Bank,  64  111.  528.)  *     *     * 

When  these  rules  are  applied  to  the  declaration  in  this 
case,  we  are  satisfied  that,  although  not  very  well  drawn, 
it  is  clearly  sufficient  to  sustain  the  judgment.  *    *    * 

The  judgment  of  the  Appellate  Court  will  be  affirmed. 

Judgment  affirmed. 


NEWMAN  V.  PERRILL. 

Supreme  Court  of  Indiana.      1880. 

73  Indiana,  153. 

Elliott,  J.  The  questions  presented  by  this  appeal 
arise  upon  the  ruling  of  the  court  sustaining  the  appellee's 

motion  in  arrest  of  judgment. 

********** 

Appellant  argues  that,  as  the  court  had  overruled  de- 
murrers to  the  complaint,  it  could  not  afterwards  right- 
fully sustain  a  motion  in  arrest.  We  do  not  think  that 
the  court,  by  ruling  wrongly  upon  the  demurrers,  precluded 
itself  from  afterwards  ruling  rightly  upon  the  motion  in  ar- 
rest. If,  when  the  motion  was  presented,  the  court  deemed 
the  complaint  so  clearly  bad  as  not  to  be  sufficient  to  sus- 
tain a  judgment,  it  was  right  to  arrest  the  proceedings  at 
that  stage,  notwitlistanding  the  fact  that  at  an  earlier  stage 
the  court  had  entertained  a  different  opinion. 

A  complaint  fatally  defective  is  vulnerable  to  attack, 
even  upon  appeal,  and  there  can  certainly  be  no  error  in 
declaring  a  fatally  defective  complaint  bad  on  motion  in 
arrest,  although  demurrers  may  have  been  previously  over- 
ruled. It  is  the  duty  of  the  court  not  to  permit  a  judg- 
ment to  be  entered  upon  a  complaint  which  is  so  clearly  in- 
sufficient as  to  afford  the  judgment  no  foundation.  There 
can  be  no  valid  judgment  without  a  sufficient  complaint, 
and,  where  a  party's  complaint  is  incurably  bad,  he  cannot 
justly  complain  of  any  ruling  which  prevented  him  from 
obtaining  a  judgment  based  upon  it. 


598  Tbial  Practice  [Chap.  16 

Judgment  affirmed.^ 

1  To  the  same  effect  see  Turnpike  Co.  v.  Yates  (1901)  108  Tenn.  428,  67 
S.  W.  69;  Field  v.  Slaughter  (1808)  1  Bibb.  (Ky.)  160;  Griffin  v.  The  Jus 
tices  (1855)  17  Ga.  96.  In  Iowa  this  practice  is  expressly  authorized  by 
statute.       Frum  v.  Keeney   (1899)   109  la.  393,  80  N.  W.  5U7. 


KELLER  V.  STEVENS. 

Court  of  Appeals  of  Maryland.      1886, 

66  Maryland,  132. 

Yellott,  J.,  delivered  the  opinion  of  the  court. 
The  appellee  instituted  proceedings  in  the  Circuit  Court 
for  Baltimore  County,  to  enforce  a  mechanics'  lien.  *    *    * 

*  *  *  On  the  17th  day  of  April,  1886,  judgment  was 
extended  in  favor  of  plaintiff  for  $389.92,  with  interest 
from  date,  and  costs,  and  on  the  same  day  judgment  fiat 
executio  was  entered  on  motion  of  plaintiff's  attorney.  On 
the  20th  of  April,  1886,  after  final  judgment  had  thus  been 
entered,  the  appellant  filed  a  motion  in  arrest  of  judgment. 
The  motion  was  overruled  and  from  this  determination  of 
the  court  below  an  ajjpeal  has  been  taken. 

There  can  be  no  doubt  that,  if  a  motion  in  arrest  had 
been  made  subsequently  to  the  judgment  by  default  and 
antecedently  to  the  entry  of  final  judgment,  the  motion 
would  have  been  strictly  in  conformity  with  regular  pro- 
cedure. *    *    * 

But  this  motion  in  arrest  was  filed  after  the  rendition  of 
a  final  judgment.  It  therefore  comes  too  late.  What  ju- 
dicial action  is  invoked  by  the  interposition  of  a  motion  in 
arrest?  The  party  presenting  the  motion  asks  the  court 
not  to  enter  final  judgment  because  of  some  supposed  de- 
fect in  the  proceedings  which  he  undertakes  to  make  ap- 
parent. But  the  judgment  having  been  already  entered, 
if  he  wishes  to  have  it  removed  from  the  record,  he  must 
endeavor  to  accomplish  that  result  by  a  motion  to  strike 
out. 

But  the  record  shows  that  this  appeal  is  from  the  de- 
cision of  the  court  below  overruling  a  motion  in  arrest  of 
judgment  filed  after  a  final  judgment  had  been  entered  in 


Sec.  3]  Arrest  of  Judgment  599 

the  cause.  There  was  no  error  committed  by  the  Circuit 
Court  in  the  disposition  which  it  made  of  the  motion,  and 
its  ruling  should  be  affirmed. 

Ruling  affirmed. 


Section  3.    Effect  of  Motion. 
STATE  EX  EEL.  HENRY  W.  BOND  V.  FISHER. 

Supreme  Court  of  Missouri.      1910, 
230  Missouri,  325. 

[On  January  16,  1904,  Sallie  Bond  filed  a  suit  against 
the  relator,  Henry  W.  Bond,  in  the  circuit  court  of  St. 
Louis,  upon  a  foreign  judgment  rendered  against  hioi  in 
the  state  of  Tennessee.  Henry  W.  Bond  filed  defend  3s  *o 
this  action,  and  on  June  21,  1907,  the  cause  came  on  for 
trial.  The  court  made  a  finding  against  the  defendant, 
Henry  W.  Bond,  whereupon,  at  the  same  term,  he  filed  his 
motion  in  arrest  of  judgment,  which  motion  was  continued, 
and  thereafter,  on  June  22,  1908,  said  motion  was  sustained, 
for  the  stated  reason  that  the  judgment  was  not  respon- 
sive to  the  issues.  Neither  party  took  any  steps  to  appeal 
from  or  review  this  order  of  the  trial  court.  Nothing  fur- 
ther was  done  for  a  year,  when  the  said  cause  was  set  for 
trial  for  the  5th  day  of  October,  1909.  Relator  at  once 
filed  a  motion  to  strike  the  cause  from  the  docket,  on  the 
ground  that  the  order  in  arrest  of  judgment  had  put  an  end 
to  the  cause,  which  motion  was  overruled.  Relator  then 
filed  a  petition  in  the  Supreme  Court  for  a  writ  of  prohibi- 
tion restraining  the  Hon.  D.  D.  Fisher,  judge  of  the  circuit 
court  of  St.  Louis,  from  proceeding  further  with  said 
cause.  A  preliminary  rule  was  issued  requiring  respond- 
ent to  show  cause  why  a  permanent  writ  of  prohibition 
should  not  issue.] ^ 

Woodson,  J.  This  is  an  original  proceeding  instituted 
in  this  court,  seeking  to  prohibit  the  respondent,  as  judge 
of  the  circuit  court  of  tlie  city  of  St.  Louis,  from  taking 
and  further  exercising  jurisdiction  over  the  parties  to  and 

^  The  matter  inclosed  in  brackets  is  a  condensation  by  the  editor  of  the 
statement  of  facts  published  with  the  opinion. 


600  Trial  Peacticb  [Chap   16 

the  subject-matter  involved  in   the  case   of  Sallie  Bond 
against  this  relator,  pending  therein. 

I.  There  are  but  two  legal  propositions  presented  by 
this  record  for  determination:  First,  what  is  the  legal  ef- 
fect of  an  unappealed  from  order  of  the  circuit  court  of  this 
State  sustaining  a  motion  in  arrest  of  judgment ;  and,  sec- 
ond, *     *     * 

"We  will  dispose  of  these  propositions  in  the  order  stated. 

At  common  law  an  unconditional  order  sustaining  a  mo- 
tion in  arrest  of  judgment  was  a  final  disposition  of  the 
cause,  that  is,  it  prevented  the  rendition  of  a  subsequent 
final  judgment  therein.  But,  if  the  order  was  made  condi- 
tional upon  an  amendment,  or  such  other  action  as  would 
remove  the  cause  of  arrest,  and  the  condition  complied 
with,  then  a  venire  facias  de  novo  should  be  awarded,  in 
which  case  the  order  in  arrest  would  not  constitute  a  bar 
to  the  entry  of  a  final  judgment  therein. 

In  Cyclopedia  of  Law  and  Procedure,  vol.  23,  p.  836,  the 
doctrine  is  stated  thus:  "The  granting  of  a  motion  in  ar- 
rest of  judgment  prevents  the  entry  of  a  final  judgment  in 
the  cause,  unless  it  is  made  conditional  upon  an  amend- 
ment, or  such  other  action  as  will  remove  the  cause  of  ar- 
rest. And  if  it  does  not  award  a  venire  facias  de  novo,  it 
operates  as  a  discontinuance  and  dismisses  defendant  with- 
out day." 

In  Encyclopedia  of  Pleading  and  Practice,  vol.  2,  p.  820, 
the  rule  is  stated  in  this  language:  ''In  civil  cases  the  sus- 
taining of  a  motion  in  arrest  of  judgment  has  the  effect 
of  putting  an  end  to  the  case." 

The  rule  is  tersely  and  clearly  stated  by  the  Supreme 
Court  of  Pennsylvania  in  the  case  of  Butcher  v.  Metis,  1 
Miles  233,  in  the  following  language: 

"An  arrest  of  judgment  is  in  effect  nothing  more  than 
superseding  a  verdict  for  some  cause  apparent  upon  the 
record,  which  shows  that  the  plaintiff  is  not  entitled  to  the 
benefit  of  the  verdict.  It  is  often  followed  by  a  judgment 
for  the  defendant,  that  he  go  without  day,  but  it  is  not  of 
itself  a  judgment  for  the  defendant.  The  court  may,  after 
an  arrest  of  judgment,  award  a  repleader  or  a  venire  de 
novo  without  a  repleader.  Wliich  of  these  courses  is  the 
proper  one,  depends  upon  the  nature  of  the  defect  for  which 


Sec.  3]  Arrest  of  Judgment  601 

the  judgment  is  arrested.  If  it  appears  by  the  record  that 
the  plaintiff  has  no  cause  of  action,  the  court  will  give  judg- 
ment, after  the  arrest  of  judgment  on  the  verdict,  that  the 
plaintiff  take  nothing  by  his  writ,  and  that  the  defendant 
go  without  day.  If  issue  be  joined  upon  an  immaterial 
point,  there  being  a  sufficient  cause  of  action  alleged  in  the 
declaration,  the  proper  course  is  to  award  a  repleader. 
If  the  pleadings  be  sufficient  and  the  issue  well  joined,  but 
the  verdict  is  imperfectly  found,  it  is  usual  to  award  a 
venire  de  novo;  and  this  it  is  said  may  be  done  upon  the 
motion  of  the  defendant,  without  a  motion  in  arrest  of 
judgment. 

''The  venire  de  novo  is  an  ancient  proceeding  of  the 
common  law.  It  was  in  use  long  before  the  practice  of 
granting  new  trials.  It  follows,  of  course,  upon  the  grant- 
ing of  a  new  trial ;  but  as  a  distinct  proceeding  it  is  com- 
monly adopted  after  a  bill  of  exceptions  or  after  a  special 
verdict  imperfectly  found,  but  always  for  some  cause  ap- 
parent on  the  record,  and  if  granted  when  it  should  not  be, 
it  is  error,  and  the  award  of  it  may  be  reversed. 

"A  new  trial,  on  the  other  hand,  is  commonly  granted 
after  a  general  verdict  for  some  cause  not  apparent  on  tne 
record,  and  it  is  not  assignable  for  error.  (Hanihleton  v. 
Veere,  2  Saund.  169  (n.  1) ;  Good  title  v.  Jones,  7  T.  R.  43, 
48 ;  Witham  v.  Lewis,  1  Wils.  48,  56 ;  Com.  Dig.,  tit.  Pleader, 
R.  18;  1  Sellon's  Practice,  ch.  11,  sec.  3  (C.  D.) ;  Miller  v. 
JRalston,  1  Serg.  k  Rawle  309;  Ehersoll  v.  Krug,  S'Binn.  53; 
Lessee  of  Pickering  v.  Rutty,  1  Serg.  &  Rawle  515.) 

"In  this  case  the  fault  was  in  the  verdict.  Of  course  it 
appears  upon  the  record.  A  venire  facias  de  novo  is  there- 
fore proper. 

"In  regard  to  the  objection  that  the  defendant  is  no 
longer  in  court  on  this  action,  it  should  be  observed  that 
the  judgment  was  arrested  at  this  term,  and  no  judgment 
has  been  entered  for  the  defendant.  He  is  therefore  still 
in  court  and  bound  to  take  notice  of  the  further  proceed- 
ings in  the  cause.  But  if  the  term  had  been  allowed  to 
elapse  after  the  arrest  of  judgment,  and  the  cause  had  not 
been  continued  by  a  cnria  adv.  vult,  according  to  strict  no- 
tions of  practice,  the  action  would  have  been  discontinued, 
and  the  defendant  without  day  in  court.  Venire  de  novo 
awarded.'* 


602  Trial  Practice  [Chap.  16 

And  the  Supreme  Court  of  Indiana  in  the  case  of  Raber 
V.  Jones,  40  Ind.  1.  c.  441,  in  discussing  this  question  used 
this  language:  ''The  complaint  does  not  aver  that  the 
judgment  against  the  corporation  was  recovered  upon  the 
policy.  It  is  a  clear  principle  of  pleading,  that  in  declar- 
ing upon  a  statute,  the  averments  must  be  sufficient  to  bring 
the  case  within  the  statute.  The  complaint  was,  therefore, 
radically  defective,  in  not  stating  facts  sufficient  to  con- 
stitute a  cause  of  action,  and  the  court  properly  arrested 
the  judgment. 

''When  the  judgment  was  arrested,  however,  there 
should  have  been  an  end  of  the  case.  No  judgment  for  th" 
defendant  should  have  followed.  The  arrest  of  judgment 
ends  the  case.  Each  party  pays  his  own  costs,  and  the 
plaintiff  is  at  liberty  to  proceed  de  novo  in  a  fresh  action. 
3B1.  Com.  393,  note  u." 

The  case  of  Kaufman  v.  Kaufman,  2  Wharton  (Pa.) 
139,  1  c.  147,  announces  the  same  doctrine. 

The  authorities  seem  to  be  uniform  upon  this  proposi- 
tion. The  only  modification  that  has  been  made  of  that 
common  law  rule  is  contained  in  section  804,  Revised  Stat- 
utes 1899.  That  section  reads  as  follows:  "When  a  judg- 
ment shall  be  arrested,  the  court  shall  allow  the  proceed- 
ings in  which  the  error  was,  to  be  amended  in  all  cases 
when  the  same  amendment  might  have  been  made  before 
trial,  and  the  cause  shall  again  proceed  according  to  the 
practice  of  the  court." 

Under  the  provisions  of  this  statute,  the  order  of  the 
court  sustaining  a  motion  in  arrest  of  judgment  does  not 
necessarily  result  in  a  new  trial,  any  more  than  it  did  at 
common  law.  Such  an  order  has  that  effect  only  in  those 
cases  where  the  motion  is  sustained  for  an  error  which 
could  have  been  cured  by  an  amendment  made  before  the 
trial  occurred.  This  was  so  held  by  this  court  in  the  case 
of  Stid  V.  Railroad,  211  Mo.  1.  c.  415,  where  Lamm,  J.,  in 
speaking  for  the  court,  used  this  language:  "Speaking  with 
prer-ision,  a  motion  in  arrest  is  not  a  motion  for  a  rehear- 
ing. If  granted,  it  does  not  necessarily  result  in  a  new 
trial.  If  an  amendment  be  allowed,  the  cause  by  statutory 
command  proceeds  'according  to  the  practice  of  the  court.' 
(R.  S.  1899,  sec.  804.)" 

This  construction  of  that  statute  is  in  harmony  with  the 


Sec.  3]  Akeest  of  Judgment  603 

spirit  of  our  legislation  upon  the  subject  of  nonsuits  and 
arrests  of  judgments,  as  expressed  in  section  4285,  Revised 
Statutes  1899,  which,  insofar  as  is  material,  reads  as  fol- 
lows: ''If  any  action  shall  have  been  commenced  within 
the  time  respectively  prescribed  in  this  chapter,  and  the 
plaintiff  therein  suffer  a  nonsuit,  or,  after  a  verdict  for  him, 
the  judgment  be  arrested,  or,  after  a  judgment  for  him, 
the  same  be  reversed  on  appeal  or  error,  such  plaintiff 
may  commence  a  new  action  from  time  to  time,  within  one 
year  after  such  nonsuit  suffered  or  such  judgment  arrested 
or  reversed." 

The  only  remaining  matter  to  be  determined  in  this  con- 
nection is,  was  the  motion  in  arrest  sustained  for  an  error 
which  might  have  been  ^cured  by  a  timely  amendment  be- 
fore the  trial  was  had  in  the  circuit  coart  of  the  city 
of  St.  Louis?  The  order  sustaining  the  motion  in  arrest 
specifically  sets  out  the  reason  for  the  court's  actions  in 
that  regard,  namely,  for  the  reason  that  the  judgment  ivas 
not  responsive  to  the  issues.  Clearly,  this  was  not  an  error 
which  could  have  been  cured  by  an  amendment  before  the 
trial  was  had  in  the  circuit  court  of  the  city  of  St.  Louis, 
within  the  meaning  of  said  section  804,  for  the  obvious 
leason  that  the  judgment  could  not  in  the  very  nature  of 
things  have  been  rendered  until  after  the  trial  was  had 
{therein.  And  since  the  order  of  the  court  sustaining  the 
motion  in  arrest  was  unconditional,  unappealed  from,  and 
the  term  at  which  it  was  entered  having  long  ago  elapsed, 
it  became  absolute  and  final,  and,  therefore,  constitutes  a 

complete  bar  to  all  further  proceedings  in  said  cause. 

********** 

We  are  of  opinion  that  the  preliminary  rule  heretofore 
issued  should  be  made  permanent. 
It  is  so  ordered.    All  concur. 


604  Teiajl.  Practice  [Cliap.  16 


CINCINNATI,  INDIANAPOLIS,  ST.  LOUIS  AND  CHI- 
CAGO EAILWAY  COMPANY  V.  CASE. 

Supreme  Court  of  Indiana.    1889, 

122  Indiana,  310, 

Coffey,  J.  This  was  an  action  by  the  appellee  against 
the  appellant  to  recover  damages  for  negligent  delay  in 
shipping  appellee's  cattle  from  the  town  of  Fowler  to  the 
city  of  Indianapolis. 

Upon  issues  formed  the  cause  was  tried  by  a  jury,  who 
returned  a  verdict  for  the  appellee. 

Appellant  moved  in  arrest  of  judgment,  which  was  over- 
ruled, and  an  exception  taken. 

Appellant  then  filed  its  motion  and  reasons  for  a  new 
trial,  which  was  overruled  and  exception  reserved.  Judg- 
ment on  verdict. 

The  first  and  second  errors  assigned  here  call  in  ques- 
tion the  sufficiency  of  the  complaint,  and  the  third  questions 
the  propriety  of  the  ruling  of  the  circuit  court  in  overrul- 
ing the  motion  for  a  new  trial. 

No  objection  to  the  ruling  of  the  circuit  court  in  over- 
ruling the  motion  in  arrest  of  judgment  is  urged  in  this 
court.    It  is  not  even  assigned  here  as  error. 

It  is  now  claimed  by  the  appellee  that  as  the  motion  in 
arrest  of  judgment  preceded  the  motion  for  a  new  trial,  the 
right  to  move  for  a  new  trial  was  cut  off,  and  that  it  can- 
not, for  that  reason,  bo  considered.  Such  seems  to  be  the 
established  practice  in  this  state.  *  *  * 

It  is  claimed  by  the  appellant  that  no  good  reason  can  be 
given  for  the  rule  established  by  these  numerous  cases, 
and  that  therefore,  they  should  be  overruled.  But  it  must 
not  be  forgotten  that  they  establish  a  rule  of  practice 
wliich  has  prevailed  in  this  State  for  many  years,  well 
understood  by  the  profession.  A  rule  so  firmly  established 
and  so  well  understood  as  this  should  not  be  disturbed,  ex- 
cept for  some  strong  reason.  The  rule  can  work  no  hard- 
ship, as  a  party  may,  after  a  motion  for  a  new  trial,  move 
in  arrest  of  judgment  and  thus  secure  the  benefit  of  both 


Soc.  3]  Akrest  of  Judgment  605 

motions.    We  know  of  no  good  reason  why  this  long  list  of 
cases  should  be  overruled.    We  find  no  error  in  the  record. 

Judgment  affirmed.^ 

1 ' '  This  rule,  however,  extends  only  to  cases  where  the  party  has  knowledge 
of  the  fact,  at  the  time  of  moving  in  arrest  of  judgment;  therefore,  a  new 
trial  was  granted  after  such  a  motion,  on  affidavits  of  two  of  the  jury,  that 
they  drew  lots  for  their  verdict.  (Pr.  Reg.  409.  Bui.  Ni.  Pri.  .325,  6.  Bed 
quaere,  whether  such  affidavits  would  now  be  received.)  "  2  Tidd's  Practice, 
•913. 


JEWELL  V.  BLANDFORD. 

Court  of  Appeals  of  Kentucky.    1838. 
7  Dana,  472. 

Opinion  of  the  Court,  by  Chief  Justice  Robertson". 

********** 

First,  did  the  previous  motion  in  arrest  of  judgment  pre- 
clude Jewell  from  a  right  to  ask  a  new  trial?  and,  secondly, 
was  he  entitled  to  a  new  trial? 

First.  Cases  may,  we  know,  be  found  in  the  British 
books,  in  which  judges  in  England  decided  that  a  motion 
for  a  new  trial  comes  too  late  after  an  unsuccessful  motion 
to  arrest  the  judgment ;  and  the  only  reason  given  for  such 
a  practice  seems  to  have  been  that  assigned  by  Bayley, 
justice;  and  that  is  because,  as  he  said,  by  moving  to 
arrest  the  judgment,  the  party  acknowledged  that  there 
was  no  valid  objection  to  the  verdict.  But  that  assump- 
tion is,  in  our  judgment,  unreasonable,  and  the  estoppel  de- 
duced from  it  seems  to  be  equally  so. 

If  it  be  true  that  a  motion  in  arrest  is  an  implied  waiver 
of  a  right  to  a  new  trial,  should  not  a  motion  for  a  new 
trial  equally  operate  as  an  implied  admission  that  there  is 
no  cause  for  arresting  the  judgment?  And  considered  as 
an  original  question,  is  there,  should  there  be,  any  such 
implied  admission  or  waiver  in  either  case?  We  think  not. 
Indeed,  in  England  this  is  a  mere  matter  of  practice  only. 
and  arose  in  England,  from  the  peculiar  organization  and 
powers  of  its  courts.    There  is  no  principle  in  it. 

Our  practice  is  different,  and  is,  therefore,  in  our  opinion, 


606  Trial  Practice  [Chap.  16 

more  consonant  with  justice  and  all  the  ends  of  the  law. 

We  do  not  hesitate,  therefore,  to  decide  that  the  motion 
for  a  new  trial  did  not  come  too  late  in  this  case,  and  the 
more  especially  as,  by  not  objecting  to  it  when  made,  the 
plaintiff  in  the  action  waived  the  technical  objection  which 
the  British  practice,  if  it  had  been  adopted  here,  might 
have  authorized  him  then  only  to  make. 


CHAPTER  XVII. 
NEW  TRIALS. 

Section  1.     General  Purpose. 

GUNN  V.  UNION  RAILROAD  COMPANY. 

Appellate  Division  of  the  Supreme  Court  of  Rhode 
Island.     1901. 

23  Rhode  Island,  289, 

Rogers,  J. — This  suit  is  trespass  on  the  case  for  negli- 
gence brought  in  the  Common  Pleas  Division,  wherein, 
upon  a  jury  trial,  the  plaintiff  obtained  a  verdict  against 
the  defendant  for  $10,000;  and  thereupon  the  defendant 
brought  it  to  this  Division  on  a  petition  for  a  new  trial  on 
the  ground,  among  others,  that  the  verdict  was  against  the 
law  and  \\\q  evidence  and  the  weight  thereof.  On  Decem- 
ber 28,  1'jOO,  this  Division  filed  its  opinion  granting  the 
petition  on  the  ground  that  the  verdict  was  against  the 
weight  of  the  evidence.  See  22  R.  I.  321.  On  the  same  day, 
0  wit,  December  28,  1900,  the  plaintiff  moved  that  this 
Division  dismiss  the  defendant's  petition  for  a  new  trial 
and  direct  the  Common  Pleas  Division  to  enter  judgment 
on  the  verdict  of  the  jury  in  said  action, — 

''First.  Because  the  record  in  said  case  shows  that  to 
grant  a  new  trial  on  the  grounds  therein  set  forth  would 
be  in  violation  of  the  constitution  of  Rhode  Island,  and 
also  of  the  constitution  of  the  United  States,  to  wit,  of  the 
fourteenth  amendment  to  said  constitution  of  the  United 
States,  wherein  it  is  provided  that  no  state  shall  'deprive 
any  person  of  life,  liberty  or  property,  without  due  process 
of  law,' 

"Second.  Because  the  court  in  its  opinion  has  'granted 
the  defendant's  petition  for  a  new  trial'  on  grounds  which 
the  record  shows  deprive  the  plaintiff  of  his  right  to  a  trial 
by  jury,  and  of  his  property,  'without  due  process  of  law.'  " 

607 


608  Tkial  Pkactice  [Chap.  17 

At  the  time  our  State  constitution  went  into  operation 
section  5  of  "An  act  to  establish  a  Supreme  Judicial  Court" 
was  in  full  force,  which  gave  that  court  the  power  to  grant 
new  trials  in  cases  decided  therein  or  in  any  Court  of  Com- 
mon Pleas  for  various  reasons  specified;  and  said  section 
contained  this  clause,  viz.:  "and  the  said  court  shall  also 
have  power  to  grant  new  trials  in  cases  where  there  has 
been  a  trial  by  jury,  for  reasons  for  which  new  trials  have 
been  usually  granted  at  common  law."  Digest  of  1822, 
p.  109. 

It  is  clear  that  our  ancestors  prior  to  our  present  State 
constitution  found  trial  by  jury  so  fallible  that  it  was 
necessary  to  provide  for  more  than  one  trial.  In  England 
as  well  as  in  the  older  States  of  America,  two  hundred  years 
ago,  trial  by  jury  was  in  a  state  of  evolution.  The  old  law 
of  attaints  against  a  jury  as  a  means  of  reversing  a  verdict 
against  the  evidence  was  apparently  obsolete  both  in  Eng- 
land and  in  this  country  before  the  American  Revolution. 
Note  to  Erving  v.  Cradock,  Quincey,  560,  by  Horace  (Mr. 
Justice)  Gray. 

Sir  William  Blackstone,  writing  in  or  about  1765  (3 
Com.  Chitty's  ed.,  388-392),  says:  "Formerly  the  prin- 
cipal remedy,  for  reversal  of  a  verdict  unduly  given,  was 
by  writ  of  attaint.  *  *  *  But  such  a  remedy  as  this  laid 
the  injured  party  under  an  insuperable  hardship  by  making 
a  conviction  of  the  jurors  for  perjury  the  condition  of  his 
redress.  The  judges  saw  this;  and  therefore  very  early, 
even  upon  writs  of  assise,  they  devised  a  great  variety  of 
distinctions,  by  which  an  attaint  might  be  avoided,  and  the 
verdict  set  to  rights  in  a  more  temperate  and  dispassionate 
method.  *  *  *  When  afterwards  attaints,  by  several 
statutes,  were  more  universally  extended,  tlie  judges  fre- 
quently, even  for  the  misbehaviour  of  jurymen,  instead  of 
prosecuting  the  writ  of  attaint,  awarded  a  second  trial: 
and  subsequent  resolutions,  for  more  than  a  century  past, 
have  so  amplified  the  benefit  of  this  remedy,  that  the  attaint 
is  now  as  obsolete  as  the  trial  by  battle  which  it  succeeded; 
and  we  shall  probably  see  the  revival  of  the  one  as  soon  as 
the  revival  of  the  other.  *  *  *  Tf  every  verdict  was  final  in 
the  first  instance,  it  would  tend  to  destroy  this  valuable 
method  of  trial,  and  would  drive  away  all  causes  of  conse- 
quence to  be  decided  according  to  the  forms  of  imperial 


Sec.  1]  New  Trials  60'J 

law,  upon  depositions  in  writing,  which  might  be  reviewed 
in  a  course  of  appeal.  *  *  *  The  jury  are  to  give  their 
opinion  instanter;  that  is,  before  they  separate,  eat,  or 
drink.  And  under  these  circumstances  the  most  intelligent 
and  best  intentioned  men  may  bring  in  a  verdict,  which 
they  themselves  upon  cool  deliberation  would  wish  to  re 
verse. 

"Next  to  doing  right,  the  great  object  in  the  administra- 
tion of  public  justice,  should  be  to  give  public  satisfaction 
If  the  verdict  be  liable  to  many  objections  and  doubts  in 
the  opinion  of  his  counsel,  or  even  in  the  opinion  of  by- 
standers, no  party  would  go  away  satisfied  unless  he  had  a 
prospect  of  reviewing  it.  Such  doubts  would  with  him  be 
decisive :  he  would  arraign  the  determination  as  manifestly 
unjust,  and  abhor  a  tribunal  which  he  imagined  had  done 
him  an  injury  without  a  possibility  of  redress. 

''Granting  a  new  trial,  under  proper  regulations,  cures 
all  these  inconveniences,  and  at  the  same  time  preserves 
entire  and  renders  perfect  that  most  excellent  method  of 
decision,  which  is  the  glory  of  the  English  law.  A  new  trial 
is  a  rehearing  of  the  cause  before  another  jury,  but  with  as 
little  prejudice  to  either  party,  as  if  it  had  never  been 
heard  before.     ************* 

"Nor  is  it  granted  where  the  scales  of  evidence  hang 
nearly  equal;  that  which  leans  against  the  former  verdict 
ought  always  very  strongly  to  preponderate." 

Bright  v.  Eynon,  1  Burr.  390,  decided  in  the  King's  bencli 
in  1757,  was  a  motion  for  a  new  trial  upon  which  the  judges 
gave  their  opinion,  granting  the  new  trial,  seriatim.  Lord 
Mansfield,  inter  alia,  said,  page  393, — "Trials  by  jury,  in 
civil  causes,  could  not  subsist  now  without  a  power,  some- 
where, to  grant  new  trials.  If  an  erroneous  judgment  be 
given  in  point  of  law,  there  are  many  ways  to  review  and 
set  it  right.  Where  a  court  judges  of  fact  upon  depositions 
in  writing,  their  sentence  or  decree  may,  many  ways,  be  re- 
viewed and  set  right.  But  a  general  verdict  can  only  be  set 
right  by  a  new  trial;  which  is  no  more  than  having  the 
causes  more  deliberately  considered  by  another  jury,  where 
there  is  a  reasonable  doubt,  or  perhaps  a  certainty,  that 
justice  has  not  been  done. 

"The  writ  of  attaint  is  now  a  mere  sound  in  every  case: 
in  many  it  does  not  pretend  to  be  a  remedy.     There  are 
T.  p.— 39 


610  Trial  Practice  [Chap.  17 

numerous  causes  of  false  verdicts,  without  corruption  or 
bad  intention  of  the  jurors.  They  may  have  heard  too 
much  of  the  matter  before  the  trial,  and  imbibed  preju- 
dices without  knowing  it.  The  cause  may  be  intricate ;  the 
examination  may  be  so  long  as  to  distract  and  confound 
their  attention.     ************ 

"If  unjust  verdicts  obtained  under  these  and  a  thousand 
like  circumstances,  were  to  be  conclusive  forever,  the  deter- 
mination of  civil  property,  in  this  method  of  trial,  would 
be  very  precarious  and  unsatisfactory.  It  is  absolutely 
necessary  to  justice,  that  there  should  upon  many  occasions, 
be   opportunities    of   reconsidering   the   cause   by   a   new 

J-^jn]  ************* 

"It  is  not  true  'that  no  new  trials  were  granted  before 
1655,'  as  has  been  said  from  Style,  466." 

After  referring  to  Slade's  case,  which  was  in  1648,  re- 
ported in  Style,  138,  and  to  Wood  v.  Gunston,  in  1655, 
Style,  466,  Lord  Mansfield  proceeds :  "The  reason  why  this 
matter  cannot  be  traced  further  back  is,  'that  the  old  re- 
port-books do  not  give  any  accounts  of  determinations 
made  by  the  court  upon  motions. ' 

"Indeed,  for  a  good  while  after  this  time,  the  granting  of 
new  trials  was  holden  to  a  degree  of  strictness,  so  intoler- 
able, that  it  drove  parties  into  a  court  of  equity,  to  have,  in 
effect,  a  new  trial  at  law,  of  a  mere  legal  question,  because 
the  verdict,  in  justice,  under  all  the  circumstances,  ought 
not  to  conclude;  and  many  bills  have  been  retained  upon 
this  ground,  and  the  question  tried  over  again  at  law, 
under  the  direction  of  a  court  of  equity.  And  therefore  of 
late  years  the  courts  of  law  have  gone  more  liberally  into 
the  granting  of  new  trials,  according  to  the  circumstances 
of  the  respective  cases.  And  the  rule  laid  down  by  Lord 
Parker,  in  the  case  of  the  Queen  against  the  corporation  of 
Helston,  H.  12  Ann  B.  R.  (Lucas,  202)  seems  to  be  the  best 
general  rule  that  can  be  laid  down  upon  this  subject;  viz. 
'Doing  justice  to  the  party,'  or  in  other  words  'attaining 
the  justice  of  the  case.' 

"The  reasons  for  granting  a  new  trial  must  be  collected 
from  the  whole  evidence,  and  from  the  nature  of  the  case 
considered  under  all  its  circumstances." 

Mr.  Justice  Denison  concurring,  added  "that  it  would  be 
difficult  perhaps  to  fix  an  absolutely  general  rule  about 


Sec.  1]  New  Tkials  611 

granting  new  trials,  without  making  so  many  exceptions  to 
it  as  might  rather  tend  to  darken  the  matter  than  to  explain 
it;  but  the  granting  a  new  trial,  or  refusing  it,  must  depend 
upon  the  legal  discretion  of  the  court,  guided  by  the  nature 
and  circumstances  of  the  particular  case,  and  directed  with 
a  view  to  the  attainment  of  justice." 

Mr.  Justice  Foster  agreed  to  the  propriety  of  what  had 
been  said,  as  to  such  cases  in  which  the  juries  give  verdicts 
against  evidence,  and  even  as  to  cases  where  there  may  be 
a  contrariety  of  evidence,  but  the  evidence  upon  the  whole, 
in  point  of  probability,  greatly  preponderates  against  the 
verdict;  (which,  depending  on  a  variety  of  circumstances, 
is  matter  of  legal  discretion,  and  cannot  be  brought  under 
any  general  rule;)  but  in  all  cases  where  the  evidence  is 
nearly  in  equilihrio,  he  declared  that  he  should  always  think 
himself  bound  to  have  regard  to  the  finding  of  the  jury,  for 
"ad  questionem  facti  respondent  jiiratores." 

Other  eases  in  which  new  trials  were  granted  in  England 
prior  to  the  American  Revolution,  are  Berks  v.  Mason, 
Sayer,  264,  decided  in  1756;  Goodtitle  v.  Clayton,  in  1768, 
4  Burr.  2224;  and  N orris  v.  Freeman,  in  1769,  3  Wil.  38.  In 
Marsh  v.  Boiver,  2  Black.  W.  851,  heard  in  1773,  the  action 
was  for  words  spoken,  and  the  words  were  fully  proved  on 
the  trial,  but  the  jury  found  for  the  defendant.  The  court 
refused  a  new  trial  solely  on  the  ground  of  triviality,  de- 
claring "that  they  would  not  grant  a  new  trial  for  the  sake 
of  sixpence  damages,  in  mercy  to  the  plaintiff  as  well  as 
the  defendant," 

The  authorities  above  cited  satisfy  us  that,  at  the  time 
of  the  separation  of  the  American  colonies  from  the  mother 
country,  the  common  law  of  England  authorized  the  grant- 
ing of  a  new  jury  trial,  in  a  proper  case,  on  the  ground  that 
the  former  verdict  was  against  the  weight  of  the  evidence. 
In  this  State  the  decisions  of  this  court,  as  well  those  deny- 
ing, as  those  granting  a  new  trial,  recognize  that  the  grant- 
ing of  a  new  trial  upon  a  strong  preponderance  of  testi- 
mony has  been  the  long-established  rule.  See  Johnson  v. 
Blanchard,  5  R.  I.  24;  Patton  v.  Hughesdale,  11  R.  I.  188; 
Watson  V.  Tripp,  11  R.  I.  98,  103;  Chafee  v.  Sprague,  15  R. 
I.  135;  Sweet  v.  Wood,  18  R.  I.  386;  Lake  v.  Weaver,  20  R. 
1.46. 

For  a  large  number  of  cases  in  other  States  upon  the 


612  Trial  Practice  [Chap.  17 

proposition  that  when  a  verdict  is  clearly  against  the 
weight  of  the  evidence,  it  is  the  duty  of  the  court  to  set  it 
aside  and  order  a  new  trial,  see  16  A.  &  E.  Enc.  of  Law 
(1st  ed.),  554,  note  7. 

The  plaintiff  in  the  case  at  bar  contends  that  it  was  an 
essential  provision  of  the  common  law  that  motions  for  new 
trials  should  be  addressed  to  the  trial  court.  One  judge, 
however,  as  we  understand  it,  went  upon  circuit,  and  the 
judges  in  banc  sat  upon  motions  for  a  new  trial,  and  though 
the  opinion  of  the  judge  that  sat  on  the  jury  trial  was  lis- 
tened to  with  much  respect,  yet  it  was  not  final ;  otherwise 
there  would  have  been  no  reason  for  the  others  sitting  and 
going  through  the  idle  form  of  expressing  their  opinion  as 
they  were  wont  to  do.  Reference  to  the  old  cases  hereinbe- 
fore cited  seems  to  show  that.  In  Marsh  v.  Boiver,  supra, 
the  report  of  the  case  says:  "Lord  Mansfield,  who  tried 
the  cause  on  the  Home  Circuit,  reported,"  &c. ,  but  "The 
court  unanimously  declared,"  etc. 

In  16  A.  &  E.  Enc.  of  Law  (1st  ed.),  618,  is  the  following 
statement,  viz.:  "In  the  absence  of  statute  regulations,  the 
general  rule  is  that  an  application  for  a  new  trial  must  be 
addressed  to  the  court  in  which  the  cause  was  tried,  and 
under  circumstances  rendering  it  necessary,  it  may  be  made 
to  the  judge  who  presided  at  the  trial,  during  vacation.  This 
rule  is  particularly  applicable,  and  of  nearly  universal  ap- 
plication in  case  of  motions  for  new  trial  for  errors  of  fact. 
Where  a  judge  dies  or  goes  out  of  office,  however,  his  suc- 
cessor may  entertain  the  motion,  and  where  a  cause  has 
been  transferred  from  one  district  to  another  by  a  change 
of  lines  or  otherwise,  such  a  motion  may  be  heard  by  the 
proper  tribunal  in  the  new  district,  while  power  to  entertain 
such  motions  has  been  conferred  by  statute  in  many  and 
perhaps  all  of  the  states  upon  courts  other  than  those  in 
which  the  trial  took  place,  in  cases  and  under  circumstances 
and  conditions  differing  greatly  in  the  different  states." 

In  3  Waterman  on  New  Trials,  1214,  is  this  statement, 
viz. :  "Notwithstanding,  however,  the  evident  want  of  qual- 
ification of  the  Appellate  Court  to  form  a  correct  opinion  as 
to  the  conformity  of  the  evidence  with  the  verdict,  in  this 
country  it  is  generally  permitted  to  exercise  a  discretion  in 
the  premises." 


Sec.  1]  New  Trials  613 

Our  statute  provides  that  a  new  trial  by  jury  may  be 
granted  "for  reasons  for  wliieli  a  new  trial  is  usually  grant- 
ed at  common  law. ' '  We  have  already  expressed  the  opin- 
ion that  the  verdict's  being  against  the  weight  of  the  evi- 
dence was  a  common-law  reason  at  the  time  of  the  adoption 
of  our  State  constitution ;  but  while  reasons  are  prescribed, 
methods  of  procedure  are  not,  and  it  seems  to  us  utterly  un- 
reasonable to  try  to  stretch  the  application  of  the  word 
reasons,  to  methods  of  procedure,  so  that  in  the  lapse  of 
years,  reaching  it  may  be  to  centuries,  no  change,  or  devel 
opmont,  or  imiDrovement,  no  adaptation  to  altered  condi 
tions  or  circumstances,  can  be  made  or  permitted  without 
making  unconstitutional  the  very  same  reasons  that  are  still 
being  adhered  to. 

Granting  a  new  trial  is  exercising  n  discretion,  and,  with 
us,  as  in  many  other  States,  is  a  power  not  confided  to  a 
single  justice.  The  exercise  of  that  discretion,  when  de- 
pending upon  the  weight  of  the  evidence,  necessitates  some 
knowledge  of  the  evidence,  and  in  this  State  that  knowledge 
is  furnished  by  a  stenographic  report  of  the  evidence — ques- 
tions, answers,  and  rulings — typewritten  out  at  length, 
made  by  a  sworn  officer  of  the  court  and  verified  by  the  al 
lowance  of  the  justice  presiding  at  the  jury  trial,  or,  if  that 
be  not  possible,  then  verified  by  affidavit.  In  this  way  all 
the  judges  have  equal  opportunities  of  judging  of  the  evi- 
dence, and  are  not  dependent  upon  the  prejudices  or  pecu- 
liarities of  any  one  man;  and,  as  they  will  not  grant  a  new 
trial  because  of  the  verdict  being  against  the  weight  of  the 
evidence,  unless  it  is  against  a  clear  and  decided  preponder- 
ance thereof,  if  they  have  any  question  in  the  matter  they 
will  invariably  sustain  the  verdict.  Though  the  justice 
presiding  at  a  jury  trial  has  some  opportunity,  perhaps,  of 
weighing  the  evidence,  that  other  justices  have  not,  yet  he 
is  also  subjected  to  greater  probability  of  having  prejudices 
awakened,  so  that  in  some  states  the  disadvantages  are 
deemed  to  outweight  the  advantages  of  his  sitting  on  a 
petition  for  a  new  trial,  and,  in  this  State,  it  is  provided 
by  statute,  that  "no  justice  shall  sit  in  the  trial  of  any 
cause  *  *  *  in  which  he  has  presided  in  any  inferior  court, 
or  in  any  case  in  which  the  ruling  or  act  of  such  justice 
sitting  alone  or  with  a  jury  is  the  subject  of  review,  except 
by  consent  of  all  the  parties."    Gen.  Laws  E.  I.  cap.  221,  s  4. 


614  Trial  Practice  [Chap.  17 


In  Missouri  v.  Letvis,  101  U.  S.  22,  31,  Mr.  Justice  Brad- 
ley, delivering  the  opinion,  said :  ' '  The  Fourteenth  Amend- 
ment does  not  profess  to  secure  to  all  persons  in  the  United 
States  the  benefit  of  the  same  laws  and  the  same  remedies. 
Great  diversities  in  these  respects  may  exist  in  two  states 
separated  only  by  an  imaginary  line.  On  one  side  of  this 
line  there  may  be  a  right  of  trial  by  jury,  and  on  the  other 
side  no  such  right.  Each  state  prescribes  its  own  modes  of 
judicial  proceeding." 

In  Broiun  v.  Levee  Commissioners,  50  Miss.  468,  the  Su- 
preme Court  of  Mississippi  speaking  of  the  meaning  of  the 
phrase  "due  process  of  law,"  uses  these  words  which  are 
quoted  approvingly  by  Mr.  Justice  Matthews  in  Hiirtado  v 
California,  110  U.  S.  516,  536,  viz.:  ''The  principle  does 
not  demand  that  the  laws  existing  at  any  point  of  time  shall 
be  irrepealable,  or  that  any  forms  of  remedies  shall  neces 
sarily  continue.  It  refers  to  certain  fundamental  rights 
which  that  system  of  jurisprudence,  of  which  ours  is  a 
derivative,  has  always  recognized.  If  any  of  these  are  dis- 
regarded in  the  proceedings  by  which  a  person  is  con- 
demned to  the  loss  of  life,  liberty,  or  property  then  the 
deprivation  has  not  been  by  'due  process  of  law.'  " 

Judge  Cooley  in  his  work  on  Constitutional  Limitations 
(6th  ed.),  434,  says:  "The  principles,  then,  upon  which  the 
process  is  based  are  to  determine  whether  it  is  'due  pro- 
cess' or  not,  and  not  any  considerations  of  mere  form.  Ad- 
ministrative and  remedial  process  may  be  changed  from 
time  to  time,  but  only  with  due  regard  to  the  landmarks 
established  for  the  protection  of  the  citizen." 

In  our  opinion  it  is  not  necessary  in  order  not  to  contra- 
vene the  constitution  either  of  this  State  or  of  the  United 
States  that  the  justice  presiding  at  the  jury  trial  should 
first  pass  upon  the  question  whether  the  verdict  is  against 
the  weight  of  the  evidence,  or  that  he  should  sit  with  the 
court  required  to  pass  upon  that  question,  in  granting  a  new 
trial  for  that  reason. 

We  are  of  the  opinion  that  this  court  has  the  constitu- 
tional right  to  grant  a  tt^w  trial  in  a  civil  case  when  in  its 
opinion  the  verdict  is  against  the  weight  of  the  evidence, 
and  that  granting  such  new  trial  in  the  case  at  bar,  would 


Sec.  1]  New  Trials  615 

not  be  a  violation  of  the  constitution  either  of  this  State  or 
of  the  United  States.  The  plaintiff's  motion,  therefore,  that 
this  Division  dismiss  the  defendant's  petition  for  a' new 
trial  and  direct  the  Common  Pleas  Division  to  enter  judg- 
ment on  the  verdict  of  the  jury  in  this  action,  is  denied. 


CALDWELL  V.  WELLS. 

Supreme  Court  of  Idaho.     1909. 

16  Idaho,  459. 

Stewaet,  J. — This  is  an  action  to  foreclose  a  mechanic's 
and  materialman's  lien  under  the  laws  of  this  state.  Upon 
the  issues  presented  by  the  pleadings  the  court  submitted 
certain  interrogatories  to  a  jury.  The  jury  made  answer 
to  such  interrogatories,  and  the  answers  were  in  favor  of 
the  defendant.  The  trial  judge  adopted  the  findings  of  the 
jury  as  the  findings  of  the  court  and  entered  judgment  in 
favor  of  the  respondent,  A  notice  of  intention  to  move 
for  a  new  trial  was  served  as  follows : 

"Take  notice,  that  plaintiff,  J.  W.  Caldwell,  intends  to 
move  the  above-named  court  to  vacate  and  set  aside  the 
judgment  rendered  in  the  above-entitled  cause,  and  to  grant 
a  new  trial  of  said  cause,  upon  the  following  grounds,  to 
wit: 

"3.  Insufficiency  of  the  evidence  to  justify  the  judg- 
ment. 

"4.     That  the  judgment  is  against  the  evidence. 
*'5.     That  the  judgment  is  against  law. 

*  *  *  The  motion  for  a  new  trial  was  overruled  and  the 
plaintiff  appeals  from  the  judgment  and  from  the  order 

overruling  the  motion  for  a  new  trial. 

********** 

*  *  *  An  application  for  a  new  trial  is  directed  to  the 
verdict  of  the  jury  or  the  decision  of  the  court.  The  ver- 
dict and  the  decision  are  supposed  to  be  based  n]">ori  the 
facts.  The  judgment  is  based  upon  the  verdict,  or  the  de- 
cision or  findings  of  the  court.    If  the  verdict  or  findings  of 


616  Trial  Practice  [Chap.  17 

the  court  do  not  support  the  judgment,  the  remedy  is  not 
by  moving  for  a  new  trial.  If,  however,  the  verdict  or  de- 
cision of  the  court  are  not  supported  by  the  evidence,  then 
the  remedy  is  to  move  for  a  new  trial  and  this  requires  a 
re-examination  of  the  issue  of  fact.  When  a  new  trial  is 
granted,  the  finding  or  verdict  is  set  aside,  in  which  case  the 
judgment  must  also  fall.  In  the  case  of  Boston  Tunnel  Co. 
V.  McKenzie,  67  Cal.  485,  8  Pac.  22,  the  court  says  of  Sawyer 
V.  Sargents} 

"It  was  held  that  a  motion  for  new  trial  cannot  be  based 
on  the  ground  of  the  insufficiency  of  the  evidence  to  justify 
the  judgment,  nor  can  it,  says  the  court,  be  based  on  the 
ground  that  the  judgment  is  against  law.  The  motion  should 
be  directed  at  the  decision,  and  not  the  judgment. '* 

Whether  the  judgment  is  authorized  by  the  findings  can- 
not be  raised  on  the  motion  for  a  new  trial,  for  it  is  not 
involved  in  a  re-examination  of  the  issues  of  fact;  so  in  this 
case  it  was  not  error  in  the  trial  court  to  overrule  the  mo- 
tion for  a  new  trial,  for  the  reason  that  counsel  for  appel- 
lant failed  to  specify  the  statutory  grounds  upon  which 
such  motion  could  be  entertained.  To  have  entitled  the 
appellant  to  have  the  facts  reviewed  or  have  this  court  de- 
termine whether  or  not  the  trial  court's  decision  was  sup- 
ported by  the  evidence,  or  against  the  evidence  and  the  law. 
counsel  should  have  specified  in  the  notice  of  intention  to 
move  for  a  new  trial  such  matters  as  grounds  for  granting 
a  new  trial.  In  other  words,  the  motion  should  have  been 
directed  to  the  decision  of  the  court,  rather  than  the  judg- 
ment. Whether  the  judgment  is  correct  cannot  be  deter 
mined  upon  a  motion  for  a  new  trial;  whether  the  decision 
of  the  court  as  contra-distinguished  from  the  judgn1on^ 
was  correct,  could  have  been  determined  upon  motion  for  a 
now  trial,  had  such  matter  been  specified  as  a  reason  for 
.q:ranting  such  new  trial.  Of  course  in  this  case  the  failure 
<"o  properly  specifv  the  insufficiencv  of  the  evidence,  or  that 
the  decision  was  aorainst  law,  would  not  have  precluded  the 
court  from  considering  the  other  proper  specifications  con- 
tained in  the  notice,  had  tliere  been  anvthino:  in  the  record 
to  support  such  grounds ;  but  it  is  admitted  by  counsel  for 

1  65  Cal.  259,  3  Pac.  872. 


Sec.  1]  New  Trials  617 

appellant  that  the  sole  and  only  ground  upon  which  a  new 
trial  could  have  been  granted  was  the  insufficiency  of  the 
evidence,  and  that  the  decision  of  the  court  was  against  the 
evidence  and  law,  and  as  these  grounds  were  not  specified, 
the  court  committed  no  error  in  overruling  the  motion.  *  * 

For  these  reasons  the  judgment  is  affirmed.  Costs  award- 
ed to  respondent. 

Sullivan,  C.  J.,  and  Ailshie,  J.,  concur. 


ARMSTEONG  V.  WHITEHEAD. 

Supreme  Court  of  Mississippi.    1902, 

81  Mississippi,  35. 

Whitfield,  C.  J.,  delivered  the  opinion  of  the  court. 

Appellant  sued  appellee  for  $144.  In  the  course  of  the 
trial  appellee,  defendant  below,  reserved  various  exceptions 
to  the  action  of  the  court  in  admitting  and  excluding  evi- 
dence. So  it  was,  however,  that  ultimately  the  judgment 
was  rendered  in  favor  of  appellant,  plaintiff  below,  for  only 
$59.  Defendant  below  made  no  motion  for  a  new  trial,  being 
satisfied  with  the  result.  Plaintiff  below,  dissatisfied  with 
the  amount  of  the  recovery,  made  a  motion  for  a  new  trial, 
which  was  overruled,  and  then  brought  the  record  to  this 
court  by  appeal.  Defendant  below,  finding  plaintiff  below 
had  appealed,  petitioned  the  circuit  clerk  for  a  cross-appeal 
and  has  here  cross  assigned  errors  predicated  upon  the  ac- 
tion of  the  court  below  in  admitting  and  excluding  evidence 
in  the  course  of  the  trial,  the  court  having  overruled  his 
objections,  and  he  liaving  excepted  at  the  time.  Appellant, 
plaintiff  below,  moves  to  dismiss  the  cross-appeal  because 
the  defendant  below  made  no  motion  for  a  new  trial. 

In  Chasfine's  case,  54  Miss.  503,  following  the  statute 
prior  to  the  code  of  1892,  §739,  it  was  held  that  this  court 
would  not  pass  upon  the  action  of  the  court  below  in  over- 
ruling a  motion  for  a  new  trial,  where  that  particular  action 
of  the  court  had  not  been  excepted  to  below,  but  the  court, 
nevertheless,  looked  to  the  bill  of  exceptions,  and  the  record, 
and  for  instructions  improperly  refused,  and  evidence  im- 


618  Trial  Practice  [Chap.  17 

properly  admitted,  reversed  the  case.  But,  let  it  be  marked, 
there  was  a  motion  for  a  new  trial  in  that  case,  and  the 
court  below  acted  on  that  motion  overruling  it.  In  Spreng- 
ler's  case,  74  Miss.  129  (s.  c,  20  So.  879,  s.  c,  21  So.  4),  the 
court  pointed  out  the  fact  that  §  739  of  the  code  of  1892 
changed  the  rule  that  this  court  would  not  pass  on  the  ac- 
tion of  the  court  below  in  overruling  a  motion  for  a  new 
trial  where  such  action  in  overruling  the  motion  had  not 
been  excepted  to.  But,  let  it  be  marked  again,  there  was  in 
Sprengler's  case  a  motion  for  a  new  trial,  and  a  judgment 
of  the  court  below  overruling  the  motion.  The  important 
thing  to  note  in  Chastin's  case  and  Sprengler's  case  is  that 
in  both  the  party  appealing  had  specifically  called  the  at- 
tention of  the  court  below  to  the  errors  complained  of,  not 
simply  by  excepting  in  the  course  of  the  trial,  but  by  re- 
peating the  exceptions  in  motions  for  new  trials  on  which 
the  court  acted.  It  would  be  very  unfair  to  the  court  be- 
low, for  this  court  to  pass  upon  errors  assigned  here  for 
the  first  time,  which  had  never  been  called  to  his  attention 
in  a  motion  for  a  new  trial  below.  The  object  of  the  motion 
for  a  new  trial,  and  the  reason  requiring  it  to  be  made  and 
acted  on  in  order  that  this  court  may  review  the  action  of 
the  court  below,  is  clearly  set  out  in  14  vol.  Ency.  of  PI. 
and  Pr.,  p.  846, 

'^a.  Generally. — The  office  of  a  motion  for  a  new  trial  is 
two-fold:  first,  to  present  the  errors  complained  of  to  the 
trial  court  for  review  and  correction,  or  to  secure  a  new 
trial;  second,  to  preserve  the  same  errors  in  the  record,  so 
that  the  ruling  of  the  trial  court  in  granting  or  refusing  a 
new  trial  may  be  reviewed  by  the  appellate  court.  It  is  a 
general  rule  that  all  errors  correctible  by  motion  for  a  new 
trial  and  not  so  assigned  are  deemed  to  have  been  waived 
by  the  applicant  for  the  new  trial.  Unless  the  motion  for  a 
"new  trial  has  been  presented  and  considered  by  the  lowei* 
court  and  its  ruling  preserved,  the  errors  assigned  in  surh 
motion  will  not  be  reviewed  by  the  appellate  court. 

''h.  To  Obtain  Bevicw  hy  Trial  Court. — To  secure  a  re- 
view in  the  trial  court  of  errors  committed  at  the  trial,  the 
complaining  party  must  except  to  the  errors  and  irregulari- 
ties at  the  time  when  the  ruling  of  the  court  thereon  are 
made,  and  must  call  attention  of  the  trial  court  to  such 
rulings  by  assigning  them  as  errors,  and  as  grounds  for  a 


ii 


Sec.  1]  New  Teials  619 

new  trial ;  otherwise  such  errors  will  be  deemed  waived. 

" c.  To  Obtain  Review  by  Appellate  Court. —  (1)  Neces- 
sity of  Motion  and  Ruling  Thereon. — It  is  a  well-known  rule 
of  appellate  courts  that  errors  of  the  trial  court  occurring 
during  the  trial  will  not  be  reviewed  unless  such  errors 
have  been  called  to  the  attention  of  the  trial  court,  and  an 
opportunity  given  to  correct  them.  It  is  necessary,  there- 
fore, to  present  such  error  to  the  trial  court  by  a  motion  for 
a  new  trial  and  to  secure  a  ruling  on  the  motion." 

And  in  Thomp.  on  Trials,  sec.  2712 : 

"Motion  Necessary  to  Preserve  Errors  in  the  Record  for 
Revieiv. — The  motion  is  necessary  to  enable  the  court  to 
correct  such  errors,  occurring  at  the  trial,  as  do  not  appear 
on  the  face  of  the  record  proper,  as  where  it  is  insisted  that 
there  is  no  evidence  to  support  the  verdict,  or  that  the  ver- 
dict is  against  the  law  and  the  evidence,  or  that  the  evidence 
does  not  authorize  the  judgment,  or  that  there  is  an  error  in 
the  verdict  of  the  jury,  or  where  it  is  alleged  that  court 
erred  in  matter  of  law,  either  in  admitting  or  rejecting  evi- 
dence, or  in  giving  or  refusing  instructions,  or  where  it  is 
alleged  that  there  has  been  misconduct  on  the  part  of  the 
jury,  or  that  the  damages  assessed  are  inadequate,  or  ex- 
cessive, or  in  a  criminal  case,  for  an  alleged  error  because 
of  the  non-arraignment  of  the  defendant.  The  grounds 
upon  which  the  motion  is  to  be  made  are  expressly  enumer- 
ated in  a  majority  of  the  practice  acts  of  the  various  States, 
and  include  generally  such  errors  in  the  mode  of  trial  as  do 
not  otherwise  appear  on  the  record,  but  which  are  proper 
matters  of  exception.  And  when  no  motion  for  a  new  trial 
is  made  in  the  trial  court  to  correct  such  errors,  most  of  the 
decisions  hold  that  they  are  deemed  to  have  been  waived, 
and  that  the  appellate  court  will  refuse  to  review  them." 

Judge  Thompson  properly  calls  attention  to  the  distinc- 
tion which  exists  in  such  cases  between  those  exceptions 
which  would  appear  upon  the  face  of  the  record  and  which 
the  judge  would  be  supposed  consequently  to  have  always 
in  mind,  and  the  very  different  character  of  exceptions 
which  are  made  in  the  current  course  of  a  trial  and  set  forth 
in  the  ordinary  bill  of  exceptions,  and  which  do  not  appear 
elsewhere.  Here  we  have  a  case  in  which  it  would  have  been 
very  easy  for  the  defendant  to  have  put  the  record  in  such 
<hape  by  making  a  motion  for  a  new  trial,  and  having  the 


620  Trial  Peactice      -  [Chap.  17 

court  overrule  it,  as  would  have  enabled  him  when  the  appel- 
lant brought  the  whole  record  here,  to  cross-assign  error. 
The  defendant  did  not  choose  to  do  that.  He  did  not  Ccill  the 
attention  of  the  court  below,  as  it  was  just  he  should  have 
done,  to  the  errors  on  which  he  finally  relied,  by  setting 
them  out  in  a  motion  for  a  new  trial,  and,  of  course,  there 
being  no  such  motion,  the  court  below  acted  on  no  such  mo- 
tion. Unlike  Chastine's  and  Sprengler's  cases,  the  case 
contains  no  motion  for  a  new  trial  at  all  on  the  part  of  the 
defendant  below,  and  for  reasons  given  in  the  authorities 
cited  the  motion  will  be  sustained. 

Cross-appeal  dismissed. 


STATE  V.  PHAEES. 

Supreme  Court  of  Appeals  of  West  Virginia.    1884. 

24  West  Virginia,  657. 

Johnson,  President:     *     *     * 

It  is  also  assigned  as  error,  that  illegal  evidence  was  ad- 
mitted. The  plaintiff  in  error  cannot  avail  himself  of  this 
exception.  He  made  no  motion  in  the  court  below  to  set 
aside  the  verdict  of  the  jury;  and  the  court  below  as  well 
as  this  Court  may  well  suppose  he  was  satisfied  with  the 
verdict.  Had  he  moved  to  set  aside  the  verdict,  on  the 
ground  that  the  allegation  and  proof  did  not  agree,  it  is 
very  probable  the  court  would  have  granted  his  motion.  In 
a  case  tried  by  a  jury  no  matter  how  many  errors  are  saved, 
and  exceptions  taken  to  the  ruling  of  the  court  during  tlie 
trial,  unless  a  motion  is  made  to  set  aside  the  verdict,  and 
that  motion  is  overruled,  all  such  errors  saved  will  by  the 
appellate  court  be  deemed  to  have  been  waived.  The  rulings 
of  the  court  during  the  trial  are  often  necessarily  hastily 
made,  and  if  a  motion  is  made  for  a  new  trial  on  the  ground 
of  erroneous  rulings  made  at  the  trial,  the  court  may  at  his 
leisure  critically  review  his  rulings,  and,  if  convinced  that 
they  were  erroneous,  will  correct  them  in  the  only  manner 
he  can  by  setting  aside  the  verdict  and  granting  a  new  trial, 
and  thus  save  to  the  parties  the  expense  of  a  writ  of  error. 


Sec.  1]  New  Trials  621 

It  would  be  unfair  to  the  trial-judge  not  to  give  him  an  o^j- 
portunity  to  correct  his  rulings,  if  the  exceptor  is  not  satis- 
fied with  the  verdict  and  intends  to  take  his  writ  of  error. 
The  exceptions  taken  during  the  course  of  the  trial  are  con 
ditional.  The  exceptor  will  take  advantage  of  them,  pro- 
vided he  is  not  satisfied  with  the  verdict.  If  dissatisfied,  he 
will  move  to  set  it  aside ;  and  if  his  motion  is  overruled,  he 
will  except;  but  if  satisfied,  he  makes  no  such  motion, 
acquiesces  in  the  verdict  and  waives  his  exceptions.  He 
may  be  satisfied  with  the  verdict  at  the  time,  for  the  reason 
that  he  would  have  no  hope  of  changing  it  to  his  advantage 
by  a  new  trial.  It  would  certainly  be  unfair,  in  the  absence 
of  a  motion  to  set  aside  the  verdict,  and  after  considerable 
time  had  elapsed,  and  the  chief  witnesses  of  his  adversary 
dead,  to  permit  him  to  have  erroneous  rulings  during  the 
trial  reversed,  after  he  had  by  his  own  action  at  the  rendi- 
tion of  the  verdict  given  his  adversary  to  understand^  that 
he  acquiesced  in  the  verdict.  A  new  trial  for  errors  com- 
mitted during  the  trial  can  only  be  had  after  motion  made 
in  the  court  below  and  overruled,  as  this  Court  will  not  ex 
mem  motu  grant  a  new  trial  in  case  no  such  motion  was 
made  in  the  court  below.  [Hiimplireys  v.  West,  3  Rand. 
516;  Miller  r.  Shreivshury,  10  W.  Va.  115;  Riddle  v.  Core, 
21  W.  Va.  530.)  Of  course  it  is  different  if  the  error  is  in 
the  pleadings,  as  in  such  case  there  was  a  mistrial. 

The  judgment  of  the  circuit  court  is  affirmed  with  costs 
and  damages  according  to  law. 

Affirmed. 


DUBCICH  V.  GRAND  LODGE  ANCIENT  ORDER  OF 
UNITED  WORKMEN. 

Supreme  Court  of  Washington.     1903. 

33  Washington,  651. 

Appeal  from  a  judgment  of  the  superior  court  for  King 
county,  Morris,  J.,  entered  March  13,  1903,  upon  the  verdict 
of  a  jury  rendered  in  favor  of  the  plaintiff  in  an  action  upon 
a  life  policy  in  a  mutual  benefit  society.    Affirmed. 


622  Trial  Practice  [Chap.  17 

Hadley,  J.    *    *    * 

Respondent  moves  to  dismiss  the  appeal  on  the  ground 
that,  as  no  motion  for  new  trial  was  made,  the  judgment 
cannot,  for  that  reason,  be  reviewed  here.  The  errors  spe- 
cifically assigned,  however,  all  involve  rulings  made  by  the 
trial  court  during  the  progress  of  the  trial.  The  office  of 
the  motion  for  new  trial,  in  its  necessary  relation  to  the 
appeal,  is  to  give  the  trial  court  opportunity  to  pass  upon 
questions  not  before  submitted  for  its  ruling  such  as  mis- 
conduct of  the  jury,  newly  discovered  evidence,  excessive 
damages,  error  in  the  assessment  of  the  amount  of  recovery, 
and  similar  questions.  The  motion  seems  to  serve  no  neces- 
sary purpose,  as  far  as  concerns  the  review  on  appeal  of 
questions  once  submitted  to,  and  decided  by,  the  trial  court. 
It  is  true,  if  such  questions  are  raised  a  second  time,  under 
the  motion  for  new  trial,  the  trial  court  may  consider  them, 
and  may  review  its  own  rulings  made  at  the  trial  to  the  ex- 
tent of  correcting  them  by  granting  a  new  trial.  But  such 
review  by  the  trial  court  is  not  necessary  in  order  that  ques- 
tions once  actually  decided  by  it  in  the  cause  may  be  con- 
sidered on  appeal.  This  court  in  effect  so  held  in  Johnson 
V.  Maxwell,  2  Wash.  482,  27  Pac.  1071,  and  Kennedy  v.  Der- 
rickson,  5  Wash.  289,  31  Pac.  766.  In  the  last  named  case 
the  court  said : 

''The  only  effect  which  the  failure  to  make  such  motion 
can  have  upon  the  proceedings  in  this  court  is  to  limit  the 
questions  which  may  be  properly  presented  here." 

It  is  contended  that  those  decisions  were  based  upon  §  450 
of  the  Code  of  1881,  which  provides  that  ''the  supreme  court 
may  review  and  reverse  on  appeal  or  writ  of  error  any 
judgment  or  order  of  the  district  court,  although  no  motion 
for  a  new  trial  was  made  in  such  court;"  and  it  is  urged 
that  no  such  provision  now  exists  in  our  statutes.  Our  at- 
tention has,  however,  not  been  called  to  any  existing  statute 
which  affirmatively  provides  that  the  motion  is  necessary 
as  a  preliminary  to  the  review  on  appeal  of  questions  passed 
upon  during  the  progress  of  the  trial.  We  think,  in  the 
absence  of  such  a  statute,  that  the  provisions  of  §  6520,  Bal. 
Code,  are  broad  enough  to  authorize  the  review  of  such 
questions  here  without  a  motion  for  new  trial.  We  refer 
particularly  to  the  following  in  said  section: 

"Upon  an  appeal  from  a  judgment,  the  supreme  court 


Sec.  2]  New  Trials  623 

may  review  any  intermediate  order  or  determination  of  the 
court  below  which  involves  the  merits  and  materially  af- 
fects the  judgment  appearing  upon  the  record  sent  up  from 
the  superior  court." 
The  motion  to  dismiss  the  appeal  is  denied. 


Section  2.    Disqualification  of  Jurors. 

HAERINGTON    V.    MANCHESTER    &    LAWRENCE 

RAILROAD. 

Supreme  Court  of  New  Hampshire.     1882, 

62  New  Hampshire,  77. 

Case,  for  personal  injuries.  After  the  trial,  and  a  ver- 
dict for  the  defendants,  the  plaintiff  moved  to  set  the  ver- 
dict aside  "because  the  foreman  of  the  jury  was  an  uncle  of 
the  defendants'  treasurer,  a  stockholder  in  the  corporation, 
and  a  witness  on  the  trial.  The  juror  was  regularly  drawn 
from  a  town  in  the  county,  and  had  been  in  attendance  as  a 
juror  eight  days  before  the  trial.  The  juror  understood 
that  the  defendants'  treasurer  was  a  stockholder.  Motion 
denied. 

Allen,  J.  It  is  repugnant  to  the  natural  sense  of  justice 
that  one  pecuniarily  interested  in  the  event  of  a  trial,  or 
related  to  either  party  to  the  cause,  should  decide,  or  take 
part  in  deciding,  its  merits.  The  preservation  of  confidence 
in  jury  trials,  and  of  purity  in  the  administration  of  jus- 
tice, requires  that  jurors  should  be  free  from  objections 
which  are  everywhere  recognized  as  disqualifying,  and  that 
they  should  be  *'as  impartial  as  the  lot  of  humanity  will 
dmit."  Bill  of  Rights,  Art.  35.  The  smallest  pecuniary 
nterest  in  the  result  of  a  cause  disqualifies  a  juror  from  sit- 
ting, and  is  a  sufficient  ground  for  a  challenge  for  cause 
{Page  v.  Contoocooh  Valley  Railroad,  21  N.  H.  438;  Smith 
V.  B.  C.  (&  M.  Railroad,  36  N.  H.  458) ;  and  near  relationship 
by  blood  or  marriage  to  a  party  in  interest  has  always  been 
regarded  as  having  the  same  effect.  Bean  v.  Quimhy,  5  N. 
H.  98;  Gear  v.  Smith,  9  N.  H.  63;  Sanborn  v.  Fellows,  22  N. 
H.  473 ;  Moses  v.  Julian,  45  N.  II.  52,  56.     The  stockholder 


624  Teial  Pkactice  [Chap.  17 

of  a  corporation  having  for  its  object  a  dividend  of  profits, 
though  not  a  party  in  a  strict  or  technical  sense  when  the 
corporation  sues  or  is  sued,  is  necessarily  interested  in  the 
result  of  the  proceeding,  and  is  so  far  a  party  in  interest 
as  to  come  within  the  disqualifying  rule ;  and  neither  he,  nor 
his  near  kindred,  would  ordinarily  be  permitted  to  sit  as  a 
juror.  Page  v.  Contoocook  Valley  Railroad,  supra;  Smith 
V.  B.  C.  &  M.  Railroad,  supra;  Moses  v.  Julian,  supra; 
Quinehaug  Bank  v.  Leavens,  20  Conn.  87 ;  Place  v.  Butter- 
nuts Mfg.  Co.,  28  Barb.  503 ;  Ranger  v.  Great  Western  Rail- 
way Co.,  5  H.  L.  Cas.  1854.  The  nephew  of  the  foreman  of 
the  jury  was  not  only  a  stockholder  in  the  defendant  cor- 
poration, but  was  also  an  important  officer  testifying  in  the 
case,  and  to  some  extent  representing  the  defendants.  He 
was  so  far  identified  in  interest  with  the  corporation,  and 
known  to  the  juror  to  be  so,  that  the  relationship  was  a  dis- 
qualifying objection,  and  a  sufficient  cause  for  challenge. 

It  has  not  been  the  usual  practice  to  disturb  a  verdict  for 
a  disqualification  of  one  of  the  jurors  rendering  it,  when  the 
objection  has  not  been  taken  until  after  verdict,  and  was 
known,  or  by  reasonable  diligence  might  have  been  known, 
to  the  party  making  it,  before  the  trial  or  before  verdict ; 
and  the  burden  of  showing  want  of  knowledge,  and  due  dili- 
gence in  discovering  the  objection,  has,  as  a  rule,  been 
placed  on  the  party  moving  for  a  new  trial.  In  Rollins  v. 
Ames,  2  N.  H.  349,  it  was  decided  that  the  fact  that  a  juror 
had,  as  a  magistrate,  taken  the  depositions  of  the  witnesses 
of  one  party  was  good  ground  for  a  challenge,  but  objection 
was  not  made  until  after  the  verdict;  and  the  verdict  was 
not  disturbed,  because  only  one  of  the  two  attorneys  for  the 
excepting  party  made  and  submitted  his  affidavit  that  he 
was  not  aware  of  the  objection  before  the  verdict.  It  did 
not  appear  that  the  other  attorney,  or  the  party  himself, 
was  aware  of  the  fact  of  ]oa;n]  in^npacitv  in  season  to  have 
taken  advantage  of  it  before  verdict.  In  State  v.  HascalJ. 
6  N.  H.  352,  360,  the  objection  was  that  the  juryman  was 
drawn  more  than  the  required  time  of  twenty  days  before 
court,  and  it  was  decided  that  it  was  too  late  to  take  the  ob- 
jection after  verdict,  on  the  ground  that  the  party  and  his 
counsel  had  had  opportunity  to  examine  the  venires  and  dis- 
cover the  irregularity  before  trial,  and,  failing  to  do  this, 
the  objection  was  waived.     To  the  same  effect  are  Wilcox 


Sec.  2]  New  Trials  625 

V.  School  District,  26  N.  H.  303,  where  only  one  selectman 
was  present  at  the  drawing  of  jurors,  and  the  irregularity 
did  not  appear  in  the  return  upon  the  venire,  but  only  in  the 
records  of  the  town;  Bodge  v.  Foss,  39  N.  H.  406,  407,  where 
the  objection  was,  that  the  officers  who  attended  to  the  draw- 
ing of  jurors  had  not  been  chosen  under  a  new  organiza- 
tion of  the  town  after  its  division  by  the  legislature:  and 
Pittsfield  V.  Barnstead,  40  N.  H.  477,  497.     In  all  these  cases 
the  objection  was  taken  after  verdict,  and  neither  the  par- 
ties nor  their  attorneys  had  knowledge  of  the  objection  at 
the  time  of  trial.     Having  opportunity,  and  failing  to  sea- 
sonably examine  the  returns  upon    the    venires    and    the 
records  of  the  town,  the  objection  could  not  prevail.     In 
State  V.  Daniels,  44  N.  H.  383,  385,  the  objection  was,  that 
the  juror  was  prejudiced  by  previous  conversation  about 
the  case,  and  it  did  not  appear  that  the  prejudice  was  not 
known  to  the  respondent  or  his  counsel  before  verdict,  and 
a  new  trial  was  refused.     In  Wassum  v.  Feeney,  121  Mass. 
93,  the  objection  that  a  juror  was  an  infant  was  not  taken 
until  after  verdict ;  and  though  the  fact  of  infancy  was  not 
known  to  the  party  or  his  counsel  during  the  trial,  it  was 
decided  that  there  had  been  sufficient  opportunity  to  learn 
the  fact,  and  make  the  objection  at  the  time  the  jury  was 
impanelled  to  try  the  case,  and  that  objection  after  verdict 
came  too  late.     In  the  opinion,  it  is  said  that  the  same  rule 
applies  to  a  juror  disqualified  by  reason  of  interest  or  re- 
lationship; and  Jeffries  v.  Randall,  14  Mass.  205,  and  Wood  . 
V  ard  V.  Dean,  113  Mass.  297,  are  cited  as  authorities.    Even 
in  a  capital  case,  application  of  the  rule  has  been  made  to 
a  juror  not  of  the  county  or  vicinage  as  required  by  the  con- 
stitution.    See  anonymous  case  referred  to  in  Amherst  v. 
Hadley,  1  Pick.  38,  41,  42.     In  Qninehaug  Bank  v.  Leavens, 
20  Conn.  87,  objection  after  verdict  was  made,  that  n  juror 
was  the  father  of  a  stockholder  of  the  bank,  and  that  the 
fact  was  not  known  to  the  defendant  or  his  counsel  before 
verdict.     This  was  decided  to  be  a  sufficient  ground  for 
challenge,  but  the  objection  came  too  late,  the  defendant  not 
having  been  diligent  in  inquirv  to  learn  the  fact  before  ver- 
dict. 

The  general  rule  derived  from  the  cases  is.  that  if  the 
party  has  used  reasonable  diligence  to  ascertain  the  compe- 
tency of  a  juror,  and  has  failed  to  discover  disqualifpng 
T.  p.— 40 


626  Tkial  Peactice  [Chap.  17 

facts  afterwards  proved,  and  which  might  operate  to  his 
prejudice  in  the  trial,  the  verdict  will  be  set  aside;  other- 
wise not.  Proffat's  note  to  Rollins  v.  Ames,  9  Am.  Dec.  79, 
S2.  It  does  not  appear,  from  any  facts  in  the  case,  that 
the  plaintiff  used  diligence  in  discovering  the  relationship 
of  the  juror  to  a  stockholder  of  the  defendants,  and  the  mo- 
tion to  set  the  verdict  aside  was  properly  denied. 

Judgment  on  the  verdict.^ 
Claek,  J.,  did  not  sit :  the  others  concurred. 


1  GROUNDS  FOR  NEW  TRIAL. 

Sections  2-8  of  this  chapter  deal  with  various  grounds  upon  which  new  trials 
may  be  granted.  For  the  jjurpose  of  affording  a  convenient  basis  of  reference 
for  the  study  of  these  cases,  the  following  summary  is  given  of  the  common 
law  grounds  and  of  the  statutory  enactments  of  the  various  states  dealing 
with  the  grounds  for  granting  new  trials. 

Common  Law.  Tidd  enumerates  the  common  law  grounds  for  new  trial  as 
follows:  1.  Want  of  due  notice  of  trial;  2.  Material  variance  between 
the  issue  or  paper-book  delivered  and  the  record  of  nisi  prius;  3.  Want  of 
a  proper  jury;  4.  Misbehaviour  of  the  prevailing  party,  towards  the  jury  or 
witnesses;  5.  Unavoidable  absence  of  attorneys  or  witnesses,  or  the  dis- 
covery of  new  and  material  evidence  since  the  trial;  6.  Perjury  of  wit- 
nesses on  whose  testimony  the  verdict  was  obtained;  7.  Misdirection  of  the 
judge,  or  the  admission  or  exclusion  of  evidence  contrary  to  law;  8.  Error 
or  mistake  of  the  jury  in  finding  a  verdict  without  or  contrary  to  evidence; 
9.  Misbehaviour  of  the  jury  in  casting  lots  for  their  verdict;  10.  Excessive 
damages.       2  Tidd's  Practice,  *903, 

AlabamM,: 

No  statutory  enumeration  of  grounds. 

Arizona:       Rev.  St.  1901,  sec.  1472. 

"New  trials  may  be  granted  and  judgments  may  be  set  aside  or  ar- 
rested on  motion  for  good  cause  on  such  terms  and  conditions  as  the  court 
shall  direct. ' ' 

Arkansas:       Kirby's  Digest,  1904,  sec.  6215. 

"1.  Irregularity  in  the  proceeding  of  the  court,  jury  or  prevailing  party,  or 
any  order  of  the  court,  or  abuse  of  discretion,  by  which  the  party  was  pre- 
vented from  having  a  fair  trial. 

2.  Misconduct  of  the  jury  or  prevailing  party. 

3.  Accident  or  surprise,  which  ordinary  prudence  could  not  have  guarded 
against. 

4.  Excessive  damages,  appearing  to  have  been  given  under  the  influence 
of  passion  or  prejudice. 

5.  Error  in  the  assessment  of  the  amount  of  recovery,  whether  too  large 
or  too  small,  where  the  action  is  ui)on  a  contract,  or  for  the  injury  or  deten- 
tion  of   j)roperty. 

6.  Thfit  the  verdict  or  decision  is  not  sustained  by  sufficient  evidence,  or 
ia  contrary  to  law. 

7.  Newly  discovered  evidence,  material  for  the  party  applying,  which  he 
could  not  with  reasonable  diligence,  have  discovered  and  produced  at  the  trial. 


Sec.  2]  New  Trials  627 

8.     Error  of  law  occurring  at  the  trial,  and  excepted  to  by  the  party  mak- 
ing the  application. ' ' 
California:     Code  Civ.  Pro.,  sec.  657. 

' '  1.  Irregularity  in  the  proceedings  of  the  court,  jury,  or  adverse  party, 
or  any  order  of  the  court,  or  abuse  of  discretion  by  which  either  party  was 
prevented  from  having  a  fair  trial. 

2.  Misconduct  of  the  jury;  and  whenever  any  one  or  more  of  the  jurors 
have  been  induced  to  assent  to  any  general  or  special  verdict,  or  to  a  finding 
on  any  question  submitted  to  them  by  the  court,  by  a  resort  to  the  determina- 
ion  v^f  chance,  such  misconduct  may  be  proved  by  the  affidavit  of  any  one 
of  the  jurors. 

3.  Accident  or  surprise,  which  ordinary  prudence  could  not  have  guarded 
against. 

4  Newly  discovered  evidence  material  for  the  party  making  the  applica- 
tion, which  he  could  not,  with  reasonable  diligence,  have  discovered  and  pro- 
duced at  the  trial. 

5.  Excessive  dan.ages,  appearing  to  have  been  given  under  the  influence 
of  passion  or  ])rejudice. 

6.  Insufficiency  of  the  evidence  to  justify  the  verdict  or  other  decision;  or 
that  it  is  against  law. 

7.  Error  in  law,  occurring  at  the  trial  and  excepted  to  by  the  party  making 
the  application. " 

Colorado:       Code  Civ.  Pro.,  Sec.  256. 

Same  as  the  California  statute,  with  term  "referee"  added  under  1st 
ground,  and  the  words  "or  inadequate"  inserted  before  damages  under  5th 
ground. 

Connecticut:       Practice  Act,  sec.  815. 

* '  The  superior  court,  court  of  common  pleas,  district  court  of  Waterbury, 
and  any  city  court,  may  grant  new  trials  of  causes  that  may  come  before  them 
respectively,  for  mispleading,  the  discovery  of  new  evidence,  want  of  actual 
notice  of  the  suit  to  any  defendant,  or  of  a  reasonable  opportunity  to  appear 
and  defend,  when  a  just  defense  in  whole  or  in  part  existed;  or  for  other 
reasonable  cause,  according  to  the  usual  rules  in  such  cases." 

Delaware: 

No  statutory  enumeration  of  grounds. 

District  of  Columbia:       Comp.  St.,  1894,  Ch.  55,  sec.  6. 

' '  The  justice  who  tries  the  cause  may,  in  his  discretion,  entertain  a  motion, 
to  be  made  on  his  minutes,  to  set  aside  a  verdict  and  grant  a  new  trial  upon 
exceptions,  or  for  insufficient  evidence,  or  for  excessive  damages;  but  such  mo- 
tion shall  be  made  at  the  same  term  at  which  the  trial  was  had. ' ' 

Florida : 

No  statutory  enumeration  of  grounds. 

Georgia:       1  Code,  1911,  sec.  6088. 

"In  all  applications  for  a  new  trial  on  other  grounds,  not  provided  for  in 
this  Code,  the  presiding  judge  must  exercise  a  sound  legal  discretion  in 
granting  or  refusing  the  same  according  to  the  provisions  of  the  common  law 
and  practice  of  the  courts." 

Idaho:       Code  Civ.  Pro.,  sec.  4439. 
Same  as  the  California  statute. 

Illinois:       Kurd's  St.,  Ch.  110,  sec.  57. 

"In  all  cases  where  a  new  trial  shall  be  granted  on  account  of  improper 
instructions  having  been  given  by  the  judge,  or  improper  evidence  admitted 
or  because  the  verdict  of  the  jury  is  contrary  to  the  weight  of  the  evidence  or 
for  any  other  cause  not  the  fault  of  the  party  applying  for  such  new  trial 
said  new  trial  shall  be  granted  without  costs,  and  as  of  right."  ' 


628  Trial  Practice  [Chap.  17 

Indiana:       Burn's  Ann.  St.,  sec.  585. 

Same  as  the  Arkansas  statute,  except  4,  which  reads  simply,  "Excessive 
damages. ' ' 

Indian  Territory:       St.  1899,  sec.  3556. 

Same  as  the  Arkansas  statute. 
Iowa:       Code,  1897,  sec.  3755. 

Same  as  the  Arkansas  statute,  except  that  the  term  "referee"  occurs  after 
"jury"  and  after  the  second  use  of  the  word  "court,"  in  1,  and  the  term 
"report"  occurs  after  the  word  "verdict"  in  6;  and  another  ground  is  added 
as  follows: 

' '  9.  That  the  pleadings  of  the  prevailing  party  do  not  state  facts  suffi- 
cient to  constitute  a  cause  of  action  or  defense,  as  the  case  may  be,  specify- 
ing wherein  they  are  defective. ' ' 

Kansas:       G.  S.  1909,  sec.  5899. 

* '  1.  Because  of  abuse  of  discretion  of  the  court,  misconduct  of  the  jury 
or  party,  or  accident  or  surprise  which  ordinary  prudence  could  not  have 
guarded  against,  or  for  any  other  cause  whereby  the  party  was  not  afforded 
a  reasonable  opportunity  to  present  his  evidence  and  be  heard  on  the  merits 
of  the  ease. 

2.  Erroneous  rulings  or  instructions  of  the  court. 

3.  That  the  verdict,  report  or  decision  was  given  under  the  influence  of 
passion  or  prejudice. 

4.  That  the  verdict,  report  or  decision  is  in  whole  or  in  part  contrary  to 
the  evidence. 

5.  For  newly  discovered  evidence  material  for  the  party  applying,  which  he 
could  not  with  reasonable  diligence,  have  discovered  and  produced  at  the  trial." 

Kentucky:     Code,  1900,  sec.  340. 

Same  as  the  Arkansas  statute,  except  that  the  words  "or  of  his  attorney" 
are  added  to  2. 

Louisiana:       Garland's  Rev.  Code,  1901,  sec.  560. 

"A  new  trial  shall  be  granted;  1.  If  the  judgment  appear  clearly  con- 
trary to  law  and  evidence;  2.  If  the  party  has  discovered,  since  the  trial, 
evidence  important  to  the  cause,  which  he  could  not,  with  due  diligence,  have 
obtained  before;  3.  If  the  cause  has  been  tried  by  a  jury,  and  it  be  shown 
that  the  jury  has  been  bribed,  or  has  behaved  improperly,  or  that  impartial 
justice  has  not  been  done  in  the  cause." 

Maine:       E.  S.  1903,  Ch.  84,  sec.  54. 

"Any  justice  of  the  supreme  judicial  or  of  a  superior  court  may,  at  the 
same  term  at  which  it  is  rendered,  set  aside  a  verdict  and  grant  a  new  trial 
in  a  case  tried  before  him,  when  in  his  opinion  the  evidence  demands  it." 

Maryland : 

No  statutory  enumeration  of  grounds. 

Massachusetts:       Kev.  Laws,  1902,  Ch.  173. 

"Sec.  112.  The  courts  may,  at  any  time  before  judgment,  set  aside  the  ver- 
dict in  a  civil  action  and  order  a  new  trial  for  any  cause  for  which  a  new 
trial  may  by  law  be  granted. 

Sec.  113.  A  new  trial  may  be  granted,  upon  motion,  for  a  mistake  of 
law  or  for  newly  discovered  evidence  in  a  case  heard  by  the  court." 

Michigan : 

No  statutory  enumeration  of  grounds. 

Minnesota:       Rev.  Laws,  1905,  sec.  4198. 

"1.  Irregularity  in  the  proceedings  of  the  court,  referee,  jury  or  prevail- 
ing party,  or  any  order  or  abuse  of  discretion,  whereby  the  moving  party  wa« 
deprived  of  a  fair  trial: 

2.     Misconduct  of  the  jury  or  prevailing  party; 


Sec.  2]  New  Trials  629 

3.  Accident  or  surprise  which  could  not  have  been  prevented  by  ordinary 
7>rndence; 

4.  Material  evidence,  newly  discovered,  which  with  reasonable  diligence 
could   not  have  been   found  and  produced  at  the  trial. 

5.  Excessive  or  insufficient  damages,  appearing  to  have  been  given  under 
the  influence  of  passion  or  prejudice. 

6.  Errors  of  law  occurring  at  the  trial,  and  either  excepted  to  at  the  time, 
or  clearly  assigned  in  the  notice  of  motion. 

7.  That  the  verdict,  decision  or  report  is  not  justified  by  the  evidence, 
or  is  contrary  to  law." 

Mississippi : 

No  statutory  enumeration  of  grounds. 

Missouri:       Ann.  St.,  1906,  sec.  800. 

' '  In  every  case  where  there  has  been  a  mistake  or  surprise  of  a  party,  his 
agent  or  attorney,  or  a  misdirection  of  the  jury  by  the  court,  or  a  mistake 
by  the  jury,  or  a  finding  contrary  to  the  direction  of  the  court,  or  a  fraud 
or  deceit  practiced  by  one  party  on  the  other,  or  the  court  is  satisfied  that 
perjury  or  mistake  has  been  committed  by  a  witness,  and  is  also  satisfied  that 
an  improper  verdict  or  finding  was  occasioned  by  any  such  matters,  and  that 
the  party  has  a  just  cause  of  action  or  of  defense,  it  shall,  on  motion  of  the 
proper  party,  grant  a  new  trial,  and,  if  necessary,  permit  the  pleadings  to  be 
amended  on  such  terms  as  may  be  just." 

Montana:       Eev.  St.,  1907,  sec.  6794. 
Same  as  the  California  statute. 

Nebra^lca:       Code  Civ.  Pro.,  sec.  314. 

Same  as  the  Arkansas  statute  except  that  term  "referee"  occurs  after 
"jury"  and  after  the  second  use  of  the  word  "court"  in  1,  and  the  term 
"report"  occurs  after  the  word  "verdict"  in  6. 

Nevada:       C.  L.  1900,  sec.  3290. 

Same  as  the  California  statute  except  2,  which  reads  merely  "Misconduct 
of  the  jury." 

New  Hampshire:     Pub.  St.,  1901,  Chap.  230. 

"A  new  trial  may  be  granted  in  any  case,  when  through  accident,  mistake  or 
misfortune  justice  has  not  been  done  and  a  further  hearing  would  be  equit- 
able. ' ' 

New  Mexico : 

No  statutory  enumeration  of  grounds. 

New  York:       Code  Civ.  Pro.,  sec.  999. 

"The  judge  presiding  at  a  trial  by  a  jury  may,  in  his  discretion,  entertain 
a  motion,  made  upon  his  minutes,  at  the  same  term,  to  set  aside  the  verdict, 
or  a  direction  dismissing  the  complaint,  and  grant  a  new  trial  upon  excep- 
tions; or  because  the  verdict  is  for  excessive  or  insufficient  damages,  or  other- 
wise contrary  to  evidence,  or  contrary  to  law." 

Norlh  Carolina:       Eevisal  of  1905,  sec.  554. 

"The  judge  who  tries  the  cause  may,  in  his  discretion,  entertain  a  motion, 
to  be  made  upon  his  minutes,  to  set  aside  a  verdict  and  grant  a  new  trial 
upon  exceptions,  or  for  insufficient  evidence,  or  for  excessive  damages." 

North  Bal-ota:       Eev.  Codes,  1905,  sec.   7063. 
Same  as  the  California  statute. 

Ohio:       Gen.  Code,  1910,  sec.  11576. 

Same  as  the  Arkansas  statute,  except  that  the  words  'referee,  master"  oc- 
cur after  the  word  "jury"  and  the  word  "referee"  occurs  after  the  second 
use  of  the  word  "court"  in  1,  and  the  word  "report"  occurs  after  the  word 
"verdict"  in  6. 


630  Teial  Practice  [Chap.  17 

OHahnma:       Comp.  Laws,  1909,  sec.  5825. 

Same  as  the  Arkansas  statute  except  that  the  word  "referee"  occurs  after 
"jury"  and  after  the  second  use  of  the  word  "court"  in  1,  and  the  word 
' '  report ' '  occurs  after  ' '  verdict "  in  6. 

Oregon:       Lord's  Oregon  Laws,  sec.  174. 

"1.  Irregularity  in  the  proceedings  of  the  court,  .i"ry  or  adverse  party,  or 
any  order  of  the  court,  or  abuse  of  discretion,  by  Mhich  such  party  was  pre- 
vented from  having  a  fair  trial; 

2.  Misconduct  of  the  jury  or  prevailing  party; 

3.  Accident  or  surprise  which  ordinary  prudence  could  not  have  guarded 
against ; 

4.  Newly  discovered  evidence,  material  for  the  party  making  the  applica- 
tion, which  he  could  not  with  reasonable  diligence  have  discovered  and  pro- 
duced at  the  trial; 

5.  Excessive  damages,  appearing  to  have  been  given  under  the  influence 
of  passion  or  prejudice ; 

6.  Insuflficiency  of  the  evidence  to  justify  the  verdict  or  other  decision,  or 
that  it  is  against  law; 

7.  Error  in  law  occurring  at  the  trial,  and  excepted  to  by  the  party  mak- 
ing the  application." 

Pennsylvania : 

No  statutory  enumeration  of  grounds. 
See:       2  Ash.  3L 

South  Carolina :       Code  of  Laws,  1902, 

"Sec.  2734.  Circuit  courts  shall  have  power  to  grant  new  trials  in  cases 
where  there  has  been  a  trial  by  jury  for  reasons  for  which  new  trials  have 
usually  been  granted  in  the  Courts  of  law  of  this  State." 

Sec.  286,       Same  as  the  North  Carolina  Statute. 

South  Dalcota:       Code  Civ.  Pro.,  sec.  300. 
Same  as  the  California  statute, 

Tennessee : 

No   statutory  enumeration  of  grounds. 

Texas:       Sayles  Civ.  St.,  sec.  1370. 

New  trials  may  be  granted,  and  judgments  may  be  set  aside  or  arrested  on 
motion  for  good  cause,  on  such  terms  and  conditions  as  the  court  shall  direct. 

Utah:       C.  L.  1907,  sec.  3292, 
Same  as  the  California  statute. 

Vermont : 

No  statutory  enumeration  of  grounds. 

Virginia:       Code,  1904,  sec.  3392. 

"In  any  civil  case  or  j)roceeding,  the  court  before  which  a  trial  by  jury 
is  had,  may  grant  a  new  trial,  unless  it  be  otherwise  specially  provided,  A 
new  trial  may  be  granted  as  well  where  the  damages  awarded  are  too  small  as 
where  they  are  excessive. ' ' 

Washington:       E.  &  B. 's  Ann.  Codes,  sec.  399, 

1  -  4,  same  as  1  -  4  in  California. 

"5.  Excessive  or  inadequate  damages  appearing  to  have  been  given  under 
the  influence  of  passion  or  prejudice. 

6.  Error  in  the  assessment  of  the  amount  of  recovery,  whether  too  large 
or  too  small,  when  the  action  is  upon  a  contract,  or  for  the  injury  or  de- 
tention  of   property." 

7  -  8,       Same  as  0  -  7  in  C.-ilifornia. 

West  Virgivia:       '^ndo,  lOOfi,  sec.  3985. 
Same  aa  Virginia. 


Sec.  2]  New  Teials  631 

irijiconsin:       St.  1898,  sec.  2878. 

' '  The  judge  before  whom  the  issue  is  tried  may,  in  his  discretion,  enter- 
tain a  motion  to  be  made  on  his  minutes  to  set  aside  a  verdict  and  grant  a 
new  trial  upon  exceptions  or  because  the  verdict  is  contrary  to  law  or  con- 
trary to  evidence,  or  for  excessive  or  inadequate  damages." 

Wyoming:       Comp.  St.,  1910,  sec.  4601. 

Same  as  the  Arkansas  statute  except  that  the  words  ' '  referee,  master ' '  oc- 
cur after  the  word  "jury"  and  the  word  "referee"  occurs  after  the  sec- 
ond use  of  the  word  "court"  in  1,  and  the  word  "report"  occurs  after  the 
word  *  *  verdict "  in  6. 


JOHNS  V.  HODGES. 

Court  of  Appeals  of  Maryland.    18S3. 

60  Maryland,  215. 

Ritchie,  J.,  delivered  the  opinion  of  the  court. 

********** 

After  the  verdict  was  rendered,  the  defendant,  discover- 
ing that  two  of  the  jnrors  were  under  twenty-five  years  of 
age,  on  the  ground  of  this  want  of  proper  age  and  his  pre- 
vious ignorance  of  it,  filed  a  motion  for  a  new  trial,  and  also 
n  petition  that  the  Court  refuse  to  certify  the  verdict  of  the 
jurv  to  the  Orphans'  Court,  because  void  and  illegal. 

The  Court  refused  to  grant  a  new  trial  and  also  to  grant 
the  petition,  which  it  treated  as  in  the  nature  of  a  motion 
for  a  new  trial  upon  the  ground  that  the  objection  was  not 
taken  in  time. 

In  the  course  of  its  opinion  upon  the  point  presented  the 
Court  forcibly  remarks:  ''It  was  competent  for  the  de- 
fendant to  have  made  the  proper  inquiries,  and  after  hav- 
ing satisfied  himself  on  the  subject,  to  have  made  the  ob- 
jection before  the  juror  was  sworn,  but  this  he  neglected  to 
do.  He  waited  until  he  had  lost  his  case.  If  a  party  to  a 
suit  may  omit  to  make  such  inquiries  until  after  a  verdict 
lias  been  rendered  against  him,  and  may  then  set  it  aside 
on  discovery  and  proof  of  the  existence  of  a  good  cause  of 
challenge  against  any  one  of  the  jury,  it  would  introduce 
an  additional  element  of  uncertainty  in  the  administration 
of  justice,  and  lead  in  many  cases  to  great  and  unnecessary 
delay  and  expense.'* 

Under  our  present  jury  system,  while  the  law  aims  to  ex- 


632  Trial  Practice  [Chap.  17 

elude  persons  under  twenty-five  years  of  age  from  serving 
on  juries,  from  tlie  nature  of  the  methods  prescribed  by  the 
statute  for  drawing  a  jury,  no  certain  means  are  provided 
for  the  absolute  exclusion  of  such  persons.  The  presump- 
tion arises,  therefore,  not  that  the  officers  charged  with  the 
duty  of  preparing  the  lists  have  wholly  succeeded  in  secur- 
ing those  free  from  all  statutory  disability,  but  that  they 
have  succeeded  so  far  as  diligence  and  good  faith  within  the 
scope  of  their  opportunities  have  enabled  them  to  do  so. 
That  the  officers  charged  with  the  selection  of  the  jury  will 
endeavor  to  discharge  that  duty  according  to  law  is  an  obli- 
gation not  peculiar  to  those  who  provide  the  jury  under 
our  present  system;  but  has  been  incident  to  the  summon- 
ing of  jurors  from  time  immemorial.  But  the  presumption 
that  jurors  only  have  been  provided  who  have  the  proper 
legal  qualifications  has  not  been  of  that  character  as  to  ren- 
der needless  the  right  of  challenge.  The  right  of  challenge 
itself  is  a  safeguard  provided  by  law  in  contemplation  of 
the  contingency  that  the  officers  whose  duty  it  is  to  select 
only  qualified  persons  have  failed  in  the  performance  of  that 
duty.  It  is  a  means  specially  provided  by  which  a  party  to 
a  suit  ma}^  readily  and  effectually  protect  himself  against 
any  oversight  or  neglect  committed  in  the  original  selection. 
That  men  may  be,  and  are,  summoned,  who  are  not  contem- 
plated by  the  law  as  the  subjects  of  jury  duty,  is  common 
experience.  And  as  the  consequences  of  such  an  error  can 
be  readily  obviated  by  inquiry  and  challenge  when  they 
come  to  be  sworn,  it  is  laches  not  to  avail  of  so  simple  and 
efficacious  a  means  of  protection,  where  prejudice  is  ap- 
prehended or  may  be  rendered  im]:»ossible,  as  examination 
and  challenge  before  the  jury  is  empanelled.  Not  to  exer- 
cise this  right,  when  so  simple  a  matter  as  the  age  of  the 
juror  is  to  be  ascertained,  or  where  he  resides,  but  to  pro- 
ceed to  trial  unimformed,  and  then  endeavor  after  verdict 
to  avail  of  a  defect  in  these  respects,  would  be  not  only  to 
entail  a  loss  of  time,  labor  and  money  that  a  little  diligence 
at  the  outset  would  have  prevented,  but  to  offer  an  induce- 
ment to  suitors  to  await  the  verdict  before  questioning  the 
f|iialification  of  the  jnror,  that,  if  favorable,  the  objection 
may  be  suppressed,  and  if  ndverse,  that  it  may  then  be  called 
into  requisition.  No  snch  lottery  is  to  be  encouraged. 
Among  the  numerous  cases  which  decide  that  what  ia 


Sec.  2]  New  Trials  633 

cause  for  challenge  cannot  be  relied  on  to  set  aside  the  ver- 
dict, if  the  right  of  challenge  has  not  been  exercised,  are 
Minna  Queen  v.  Hepburn,  7  Cranch.  290;  Hollingsworth  v. 
Duane,  4  Dall.  353 ;  Amherst  v.  Hadley,  1  Pick.  38 ;  People 
V.  Jewett,  6  Wendell,  386;  United  States  v.  Baker,  3  Bene 
diet,  68;  Gormley  v.  Laramore,  40  Ga.  253;  Wassum  v.  Fee 
ney,  121  Mass.  93 ;  Rex  v.  Sutton,  8  Barn.  &  Cress,  417. 

The  fact  that  the  party  was  not  aware  of  the  disqualifi 
cation  when  the  jury  was  empanelled  is  not  material;  be- 
cause he  might  have  known  it.  In  the  cases  in  4  Dall.,  3 
Benedict,  121  Mass.,  and  40  Ga.,  just  cited,  the  disqualifica- 
tion was  not  known  when  the  juror  was  sworn.  The  case 
in  121  Mass.,  was  very  similar  in  its  facts  to  those  relied 
on  by  the  appellant.  The  objection  was  to  the  infancy  of 
the  juror,  which  was  unknown  to  the  defendant  until  the 
time  of  making  his  motion  to  set  aside  the  verdict.  Gray, 
C.  J.,  in  delivering  the  opinion  of  the  Court,  fully  reviews 
the  decisions  bearing  on  the  subject.  Lord  Tenterden,  in 
Rex  V.  Sutton,  goes  so  far  as  to  say:  ''I  am  not  aware  that 
a  new  trial  has  ever  been  granted  on  the  ground  that  a  juror 
was  liable  to  be  challenged,  if  the  party  had  an  opportunity 

of  making  his  challenge." 

********** 

Rulings  affirmed,  and  cause  remanded. 


FITZPATRICK  V.  HARRIS. 

Court  of  Appeals  of  Kentucky.    1855. 

16  B.  Monroe,  561. 

*  *  *  A  new  trial  was  asked  upon  the  ground  that  Elliott 
had  been  improperly  admitted  to  testify,  and  that  one  of  the 
jurors  who  sat  on  the  last  trial  had  also  sat  on  the  first 
trial.  *  *  * 

Chief  Justice  Marshall  delivered  the  opinion  of  the 
court. 

Though  the  affidavit  of  the  defendant  states  that  he  did 
not  know  until  after  he  was  accepted,  that  Salyers,  who  was 
one  of  the  jury  on  the  last  trial,  had  been  one  of  the  jury  on 


G34:  Tkial  Pkactice  [Chap.  17 

the  former  trial,  (when  a  verdict  was  found  for  the  plain- 
tiff,) it  is  not  a  sufficient  ground  for  a  new  trial.  The  ob- 
jection might  have  been  made  at  any  time  before  the  juror 
was  sworn,  and,  as  we  think,  at  any  time  before  the  entire 
jury  was  sworn,  and  the  fact  should  have  been  made  known 
as  soon  as  discovered,  at  any  time  before  the  jury  retired, 
when  it  might  have  been  in  the  power  of  the  parties  to  cure 
or  waive  the  objection.  Besides,  the  record  of  the  former 
trial  furnished  to  the  parties  and  their  counsel  the  means  of 
knowing  the  names  of  the  jurors  who  had  then  tried  the 
case,  and  even  if  they  were  not  personally  known,  the  iden- 
tity of  name  would  suggest  the  probable  indentity  of  the  per- 
son ;  and  even  without  the  trouble  of  examining  the  record, 
the  fact  that  there  had  been  a  previous  trial,  authorized,  and 
should  have  suggested,  the  question  to  be  asked  of  the  juror 
himself,  whether  he  had  been  one  of  the  former  jury.  With 
such  opportunities  of  ascertaining  the  fact,  the  failure  to 
disclose  it  until  it  is  made  the  ground  of  asking  a  new  trial, 
raises  a  presumption  of  bad  faith,  or  of  wilfuU  neglect, 
which  can  only  be  overcome  by  showing  such  extraordinary 
circumstances,  if  there  can  be  any  such,  as  will  account  for 
ignorance  where  the  party  ought  to  have  knowledge,  and 
excuse  neglect  where  he  is  bound  to  be  diligent.  In  this 
case  the  affidavit  of  Salyers  proves  that  he  and  the  defend- 
ant were  familiar  acquaintances  and  friends. — And  thus  the 
circumstances  strengthen  instead  of  repelling  the  unfavor- 
able presumptions  in  the  case.  And  we  may  add,  that  even 
if  the  defendant  himself  were  ignorant,  it  is  not  shown  that 
his  counsel,  who  conducted  the  defense,  did  not  know  the 
fact  now  brought  forward,  nor,  if  they  were  ignorant  of  it, 
is  any  reason  shown  for  their  neglecting  the  means  of  knowl- 
edge so  easily  within  their  power.  The  affidavit,  therefore, 
makes  out  no  ground  for  a  new  trial. 

Affirmed. 


Sec.  2]  New  Teials  635 

KNIGHTS  OF  PYTHIAS  V.  STEELE. 

Supreme  Court  of  Tennessee.    1901. 

107  Tennessee,  1. 

Wilkes,  J.  This  is  a  suit  against  the  Endowment  Bank 
of  the  Order  of  Knights  of  Pythias  to  recover  $3,000,  the 
amount  of  a  benefit  certificate  in  the  fourth  class  upon  the 

life  of  J.  K.  Steele,  j)ayable  to  his  wife  as  beneficiary. 

********** 

It  is  assigned  as  error  that  the  Court  below  erroneously 
refused  to  grant  a  new  trial  on  the  grounds  of  incompetency 
and  misconduct  of  the  jury.  It  appears  that  three  of  the 
jurors  who  sat  upon  the  case,  to  wit,  Munroe,  Felts  and 
Flanaghan,  had  served  upon  the  jury  in  Shelby  County  with- 
in two  years  before  they  were  called  upon  the  jury  in  this 
case,  and  were  therefore  incompetent.  It  appears  that  the 
jury  was  placed  in  the  box  and  tendered  to  the  parties  in  a 
body.  Counsel  for  the  Order,  when  the  jury  was  thus  tend- 
ered, asked  the  question  of  them  collectively  if  any  one  of 
them  had  served  as  a  juror  on  a  regular  panel  in  any  Court 
in  Shelby  County  within  the  last  two  years,  and  each  shook 
his  head. 

It  appears  also  that  when  this  jury  was  made  up  on  the 
Monday  preceding  the  trial,  for  service  generally  in  the 
Court,  two  of  them,  Munroe  and  Flanaghan,  were  examined 
separately  and  individually  by  the  presiding  Judge,  and 
each  answered  that  he  had  not  served  on  any  regular  jury  in 
the  county  of  Shelby  within  the  two  years  next  preceding. 
The  other  juror,  Felts,  appears  not  to  have  been  present  and 
was  not  examined  on  that  occasion,  but  it  is  reasonably  cer- 
tain from  the  record  that  he  was  examined  when  he  was  af- 
terward chosen,  though  he  sitates  he  was  not. 

We  are  of  the  opinion  that  these  jurors  were  not  the  good 
and  lawful  men  to  whom  the  parties  were  entitled  as  jurors 
under  Article  I.,  Section  6,  of  the  Constitution.  Neeley  v. 
The  State,  4  Bax.  180.  They  were  not  competent  to  serve 
as  jurors,  and  were  subject  to  challenge.  Shannon's  Code, 
§  5090. 

While  it  is  not  a  good  objection  generally,  after  verdict, 
that  a  juror  who  sat  on  the  case  was  incompetent  propter 


636  Trial  Pkactice  [Chap.  17 

defectum,  and  it  does  not  matter  whether  the  fact  was  known 
to  the  parties  or  not,  yet  this  rule  proceeds  npon  the  idea 
that  the  juror  miglit  have  been  examined  before  being  selec- 
ted or  the  parties  might  have  ascertained  the  fact  and  ex- 
cluded such  juror  by  challenge.  But  in  this  case  the  coun- 
sel for  the  company  exercised  reasonable  precaution  to  as- 
certain if  the  jury  or  any  one  of  them  was  incompetent  by 
inquiring  of  the  jurors  themselves,  and  had  the  assurance  of 
competency,  from  the  presumption  that  the  trial  Judge  ex- 
amined them  upon  that  point  when  they  were  placed  on  the 
regular  jury,  and  the  actual  fact  of  a  second  examination  by 
himself.  Tlic  jurors  explained  that  they  were  mistaken 
about  the  time  when  they  served,  and  did  not  intend  to 
state  a  falsehood  or  mislead.  However  this  may  have  been, 
the  fact  of  incompetency  existed,  and  counsel  for  the  com- 
pany was  misled  and  deceived,  after  taking  proper  precau- 
tions to  ascertain  the  fact,  and  by  the  jurors  themselves 
while  either  actually  or  virtually  under  oath,  and  it  was  not 
simply  a  case  of  want  of  knowledge  of  incompetency  nor  a 
waiver  of  incompetency,  with  or  without  knowledge  of  its 
existence,  in  which  case  the  exception  being  propter  defec- 
tum, must  be  considered  as  waived ;  but  it  is  a  case  where 
the  exception  was  reasonably  made,  or  would  have  been 
made  but  for  the  incorrect  or  false  statements  of  the  jurors, 
which  misled  the  defendant's  counsel  and  influenced  his  ac- 
tion. It  is  true  counsel  might  have  examined  the  jury  books 
of  the  Court,  and  such  other  Courts  in  Shelby  County  as 
had  jurors,  but  this  would  have  been  an  extraordinary  pre- 
caution, which  would  have  consumed  time  and  delayed  the 
Court,  and  he  could  not  be  required  so  to  do. 

The  judgment  of  the  Court  below  is  reversed,  and  the 
cause  remanded,  and  appellee  will  pay  costs  of  appeal. 


Sec.  2]  New  Trials  637 

UNITED  STATES  V.  CHRISTENSEN. 

Supreme  Court  of  the  Territory  of  Utah.    1890, 

7  Utah,  26. 

Anderson,  J. 

The  defendant  was  indicted  for  unlawful  cohabitation, 
and  was  tried  and  convicted.  He  moved  for  a  new  trial  up- 
on the  ground,  among  others,  of  misconduct  of  the  jury 
tending  to  prevent  a  fair  and  due  consideration  of  the  case, 
based  upon  affidavits  showing  that  one  John  Harris,  who 
was  one  of  the  petit  jury  which  convicted  him,  was  on  the 
grand  jury  which  found  the  indictment,  and  tliat  the  fact 
was  not  known  of  him  or  his  counsel  until  after  the  verdict, 
and  that  the  juror  stated  falsely  on  his  voir  fizre  that  he  had 
not  formed  or  expressed  an  unqualified  opinion  as  to  the 
guilt  or  innocence  of  the  accused  of  the  offense  charged. 
The  motion  was  sustained,  and  a  new  trial  granted,  and  the 
United  States  excepted  to  the  ruling  of  the  court,  and  now 
prosecutes  this  appeal  from  the  order  of  the  court  granting 
a  new  trial.  When  the  juror  Harris  was  called,  he  was 
sworn  on  his  voir  dire,  and  interrogated  by  defendant's 
counsel  as  follows :  ' '  Do  you  know  the  defendant  ?  Do  you 
know  any  of  the  witnesses  named  on  the  back  of  the  indict- 
ment? Have  you  talked  with  any  person  regarding  this 
case?  Have  you  ever  formed  or  expressed  an  opinion  as 
to  the  guilt  or  innocence  of  the  defendant?"  To  each  of 
these  questions  he  answered  in  the  negative,  and  was  ac- 
cepted as  a  juror  in  the  case. 

The  only  question  to  be  determined  is  whether  the  court 
erred  in  sustaining  the  motion  for  a  new  trial.  In  the  case 
of  People  V.  Reece,  3  Utah,  72,  2  Pac.  Rep.  61,  it  was  held 
that  where  a  juror  falsely  stated,  upon  examination  under 
oath  as  to  his  qualifications  as  a  juror,  that  he  was  a  citizen 
of  the  United  States,  and  neither  of  the  defendants  knew  or 
had  reason  to  believe  until  after  verdict  that  he  was  not  a 
citizen,  the  defendants  could  not  be  deemed  to  have  waived 
their  right  to  a  jury  of  twelve  men  possessing  the  qualifica- 
tion of  citizenship,  and,  being  guilty  of  no  negligence  or 
want  of  watchfulness,  were  entitled  to  have  the  verdict  set 
aside,  and  a  new  trial  granted.    In  People  v.  Lewis,  4  Utah, 


638  Trial  Practice  [Chap.  IT 

42,  5  Pac.  Eep.  543,  the  defendant  was  convicted  of  grand 
larceny.  One  of  the  trial  jury  which  convicted  him  was  a 
member  of  the  grand  jury  which  found  the  indictment 
against  him.  Neither  the  defendant  nor  his  counsel  knew 
this  until  after  the  verdict.  The  defendant  moved  for  a 
new  trial,  which  was  overruled,  and  the  ruling  was  affirmed 
in  this  court  upon  the  ground  of  the  defendant's  negligence 
in  not  making  sufficient  inquiries  as  to  the  qualifications  of 
the  jurors.  The  jurors  were  sworn  on  their  voir  dire,  and 
interrogated  as  to  their  statutory  qualifications,  to  which  no 
answer  was  given.  Counsel  for  defendant  then  examined 
the  jurors  as  follows : 

''Are  you  acquainted  with  the  defendant,  Walter  Lewis, 
here?     Have  any  of  you  heard  so  much  about  his  case  as  to 
form  or  express  an  opinion,  an  unqualified  opinion,  concern- 
ing his  guilt  or  innocence?     If  any  of  you  have,  make  it 
known.     I  will  not  put  questions  directly  to  each  of  you." 
The  jurors  were  then  asked  if  any  of  them  were  related  to 
the  prosecuting  witness,  and  if  they  had  formed  or  express- 
ed an  opinion  from  anything  they  had  heard  him  say,  and  hi' 
added:     ''You  don't  seem  to  answer,  and  I  will  not  put  thv 
question  to  any  of  you  particularly."    No  statement  of  th' 
facts  constituting  the  alleged  offense  was  made  to  the  jurors, 
and  hence,  the  court  say,  the  jurors  could  not  well  have 
known  whether  they  had  an  opinion  as  to  the  guilt  or  inno- 
cence of  the  defendant  or  not,  and  that,  taking  into  con- 
sideration the  timidity  and  apparent  unwillingness  of  many 
jurors  to  answer  questions  unless  they  are  individually  in- 
terrogated, it  is  not  surprising  that  there  was  no  response 
to  the  questions  of  defendant's  counsel.     The  court  was  of 
the  opinion  that  interrogating  the  jurors  in  such  a  general 
way  was  such  negligence  that  the  defendant  could  not,  after 
an  unfavorable  verdict,  successfully  move  for  a  new  trial, 
when,  with  the  proper  diligence,  good  ground  for  a  chal- 
lenge of  the  juror  would  have  been  discovered.     The  court 
said,  however,  that  "an  express  unqualified  answer  that  the 
juror  is  a  citizen,  or  that  he  has  not  formed  or  expressed  an 
opinion  as  to  the  guilt  or  innocence  of  the  accused,  is  suffi- 
cient to  relieve  the  defense  from  further  investigation  un- 
less there  is  something  to  put  the  party  upon  furthf^r  in- 
quiry."    In  the  present  case  the  defendant's  counsel  asked 
the  juror  whether  he  had  formed  or  expressed  an  opinion 


Sec.  2]  New  Trials  639 

:is  to  the  guilt  or  innocence  of  the  defendant,  and  he  answer- 
ed that  he  had  not,  and  under  the  ruling  in  People  v.  Lewis, 
supra,  the  defendant  was  not  bound  to  pursue  the  investiga- 
tion further.  It  is  not  shown  that  the  juror  Harris  had 
formed  or  expressed  an  unqualified  opinion  as  to  the  guilt 
or  innocence  of  the  defendant  further  than  the  fact  that  he 
was  one  of  the  grand  jury  that  found  the  indictment  against 
him,  and  as  to  this  fact  he  was  not  interrogated.  The  case 
of  Rice  V.  State,  16  Ind.  298,  was  precisely  like  the  one  at 
bar  in  its  facts.  One  of  the  trial  jurors  had  been  one  of  the 
grand  jury  which  found  the  indictment.  The  juror  was  not 
asked  as  to  whether  he  had  been  on  the  grand  jury  that 
found  the  indictment,  but  was  asked  whether  he  had  formed 
or  expressed  an  opinion  as  to  the  guilt  or  innocence  of  the 
accused,  and  answered  that  he  had  not.  The  fact  that  he 
had  been  on  the  grand  jury  was  not  discovered  until  after 
verdict,  and,  on  a  motion  for  a  new  trial,  the  affidavit  of  the 
juror  was  filed  in  support  of  the  verdict  to  the  effect  that  at 
the  time  of  being  examined  he  had  no  opinion  as  to  the  de- 
fendant's guilt,  and  had  forgotten  the  circumstance  of  his 
having  been  on  the  grand  jury.  The  court  held  that  the 
defendant  was  entitled  to  a  new  trial,  and  was  guilty  of  no 
negligence  in  not  sooner  discovering  the  fact  of  the  juror's 
incompetency,  but  that,  if  the  fact  had  been  known  to  the  ac- 
cused at  the  time  the  jury  was  accepted  and  sworn,  he  could 
not  afterwards  have  been  heard  to  make  the  objection. 

An  objection  to  a  juror  such  as  is  raised  in  this  case  is  not 
like  merely  technical  disqualifications,  such  as  allienage, 
non-residence,  and  the  like,  which  do  not  tend  to  impeach 
the  fairness  and  impartiality  of  the  jury.  It  is  possibly 
true  that  the  juror  in  this  case  had  no  opinion  at  the  time 
of  his  examination  as  to  the  guilt  or  innocence  of  the  ac- 
cused. He  may  have  forgotten  that  he  was  on  the  grand 
jury  that  found  the  indictment.  He  may  have  voted  against 
finding  the  indictment,  or  may  have  been  absent  when  it  was 
found,  as  twelve  of  the  fifteen  jurors  constitute  a  quonmi, 
and  may  transact  business ;  but  the  presumptions  of  the  law 
are  all  to  the  contrary,  and,  in  the  absence  of  any  showing  to 
that  effect,  ho  must  be  presumed  to  have  participated  in  the 
finding  of  the  indictment,  and  to  have  formed  an  opinion  as 
to  the  guilt  or  innocence  of  the  defendant.  It  might  be  pos- 
sible, also,  even  if  the  juror  had  formed  an  unqualified  be- 


640  Teial  Peacticb  [Chap.  17 

lief  of  the  defendant's  guilt  from  the  evidence  submitted  to 
the  grand  jury,  to  change  the  opinion  by  evidence  at  the 
trial,  if  he  were  a  man  of  candor  and  intelligence.  But  the 
defendant  has  a  right  to  be  tried  by  an  impartial  jury.  A 
juror  who,  acting  on  his  own  oath  as  a  grand  juror,  and  up- 
on the  sworn  testimony  of  witnesses,  has  already  formed  an 
opinion  as  to  the  defendant's  guilt,  and  has  solemnly  ac- 
cused him  of  a  crime,  should  not  be  deemed  an  impartial  or 
proper  juror  to  try  him.  Having  served  on  the  grand  jury 
which  found  the  indictment  and  having  formed  or  expressed 
an  unqualified  opinion  or  belief  that  the  prisoner  is  guilty 
or  not  guilty  of  the  offense  charged,  are  each  a  ground  of 
challenge  to  a  juror  for  implied  bias.  2  Comp.  Laws  1888, 
§  5022,  subds.  4,  8.  And  where  the  accused  properly  ex- 
amines the  jurors  concerning  their  qualifications,  and  they 
do  not  answer  truthfully,  he  is  thereby  not  only  deprived  of 
his  right  of  challenge  for  cause,  but  may  also  be  prevented 
from  exercising  his  right  of  peremptory  challenge.  If,  in 
such  a  case,  a  defendant,  in  trying  to  ascertain  whether 
the  jurors  are  competent  or  not,  without  negligence  on  his 
part,  is  denied  a  new  trial,  the  greatest  injustice  might  be 
done.  In  this  case  the  names  of  the  grand  jurors  did  not 
appear  on  the  indictment,  the  law  only  requiring  that  the 
name  of  the  foreman  should  appear ;  and  there  was  nothing 
to  notify  defendant  that  the  juror  had  been  on  the  grand 
jury  that  found  the  indictment,  nor  to  put  him  on  inquiry. 
It  is  true  if  he  had  searched  the  records  of  the  court  he 
would  have  ascertained  that  fact,  and  it  would  have  been 
commendable  prudence  and  diligence  to  have  done  so;  but 
we  do  not  think  his  failure  to  do  so  is  such  negligence  as 
should  deprive  him  of  the  right  to  be  tried  by  an  impartial 
jury,  especially  in  view  of  the  false  answer  given  by  the 
juror.  The  motion  for  a  new  trial  was  properly  granted. 
In  support  of  the  views  above  expressed,  see  Com.  v.  Hus- 
sey,  13  Mass.  221;  Dilworth  v.  Com.,  65  Amer.  Dec.  264; 
Bennett  v.  State,  24  Wis.  57 ;  Hayne,  New  Trials,  §  45,  and 
cases  cited.  See,  also  section  64.  Our  attention  has  been 
called  to  a  number  of  cases  where,  upon  the  same  state  of 
facts  as  are  presented  here,  a  different  conclusion  has  been 
reached,  but  we  think  the  weight  of  authority  as  well  as  of 


Sec.  2]  New  Tbials  641 

reason  is  iu  accordance  with  this  opinion.     The  ruling  of  the 
district  court  is  affirmed. 

Zane,  C.  J.,  and  Henderson,  J.,  concurred. 


FLORENCE,  EL  DORADO  &  WALNUT  VALLEY  RAIL 
ROAD  COMPANY  V.  WARD. 

Supreme  Court  of  Kansas.     1883, 

29  Kansas,  354. 

The  opinion  of  the  court  was  delivered  by 

Valentine,  J. :  This  action  grows  out  of  a  condemnation 
proceeding  instituted  in  Butler  county  by  the  Florence  El 
Dorado  &  Walnut  Valley  railroad  company,  to  acquire  a 
right-of-way  for  its  railroad  over  the  lands  of  J.  R.  Ward 
and  others.  Ward,  being  dissatisfied  with  the  award  of  the 
commissioners,  appealed  to  the  district  court  of  said  county 
by  which  appeal  he  became  the  plaintiff,  the  railroad  com- 
pany became  the  defendant.  The  case  was  then  tried  be- 
fore the  court  and  a  jury.  The  jury  consisted  of  Robert  F. 
Moore,  R.  H.  Steele,  Harry  Jones,  James  Hughes,  and 
others.  In  impaneling  the  jury  the  following  proceedings, 
among  others,  were  had: 

R.  H.  Steele,  examined  by  plaintiff's  attorney:  Q.  Have 
the  facts,  or  what  purported  to  be  the  facts,  been  related  in 
your  presence  or  hearing.  A.  Yes,  sir ;  to  a  large  extent. 
I  have  heard  a  great  deal  of  the  case. 

Q.  Have  you  heard  what  purported  to  be  the  facts  of  the 
damages  the  plaintiff  has  sustained?  A.  I  have  heard  the 
iircumstances  of  the  land  and  the  conditions  through  which 

the  road  ran  through  there,  explained  to  me. 

********** 

R.  H.  Steele,  examined  by  defendant's  attorney:  *  *  * 

Q.  Have  you  from  Mr.  Ward  or  others  heard  of  a  com- 
promise having  been  made  by  the  defendant  railroad  com- 
pany to  Mr.  Ward  in  regard  to  this  suit? 

(Plaintiff  objects  as  immaterial  and  irrelevant,  which  the 
court  overrules,  the  plaintiff  at  the  time  excepting.) 

A.    Yes,  sir  j  I  have. 

T.  P.— il 


642  Trial  Practice  [Chap.  17 

Q.  In  what  you  heard,  was  any  amount  stated?  A.  It 
was. 

Q.  Did  you,  at  the  time  you  heard  it  form  any  opinion  as 
to  whether  that  amount  was  more  or  less  than  Ward  ought 
to  receive? 

(Plaintiff  objects  as  immaterial,  which  objection  the 
court  overrules.) 

A.     I  believe  I  did. 

(Defendant's  counsel  challenge  R.  H,  Steele  for  cause  ) 

The  court  overruled  defendant's  challenge  for  cause,  to 
which  ruling  the  defendant  at  the  time  excepted. 

The  jury  found  a  general  verdict  in  favor  of  the  plain- 
tiff and  against  the  defendant,  and  assessed  the  amount  of 
the  damages  at  the  sum  of  $1,050.  The  defendant  then 
moved  the  court  for  a  new  trial  upon  various  grounds,  and 
among  others,  on  the  ground  of  misconduct  on  the  part  of 
the  jury.  The  alleged  misconduct  was  principally  that  of 
R.  H.  Steele.  On  the  hearing  of  the  motion  for  a  new  trial, 
the  several  jurors  were  examined  orally  with  reference  to 
certain  matters  occurring  during  their  deliberations  with 
reference  to  their  verdict.  A  portion  of  their  evidence  is 
as  follows: 

[It  was  shown  that  Steoile,  in  order  to  get  the  verdict 
above  $1,000,  stated  to  the  other  jurors  that  the  defendant 
had  offered  to  pay  the  plaintiff  $1,000,  and  also  that  unless 
the  verdict  was  above  $1,000,  the  plaintiff  would  have  to 
pay  the  costs.] ^ 

Upon  the  foregoing  evidence,  these  questions  arise:  1. 
Was  the  juror  Steele  a  competent  and  impartial  juror?  2. 
Was  he  guilty  of  misconduct  while  the  jury  were  delibera- 
ting upon  their  verdict? 

The  plaintiff  claims  that  the  juror  was  competent  and  im- 
partial, and  that  he  was  not  guilty  of  any  misconduct;  while 
the  defendant  claims  the  reverse.  *  *  * 

The  plaintiff  also  claims  that  the  defendant  did  not  ex- 
haust its  peremptory  challenges ;  that,  at  the  time  the  jury 
were  impaneled  and  sworn  and  the  trial  commenced,  the  de- 
fendant still  had  one  peremptory  challenge,  which  it  might 

1  The  matter  inclosed  in  brackets  is  a  condensation  of  facts  made  by  the 
editor. 


Sec.  2]  New  Trials  643 

have  exercised  in  discharging  Steele  from  the  jury  if  it  had 
so  chosen;  but  that  it  did  not  so  choose,  and  therefore 
Steele  remained  a  member  of  the  jury.  We  have  examined 
this  claim  of  the  plaintiff,  and  the  claim  seems  to  be  correct. 
The  record  does  not  show  that  the  defendant  exercised 
more  than  two  of  its  peremptory  challenges,  while,  under 
the  statutes,  each  party  is  entitled  to  three.  (Civil  Code, 
§  271.)  This  fact,  that  the  defendant  did  not  exercise  all 
its  peremptory  challenges,  we  think  must  have  an  impor- 
tant bearing  in  the  case.  It  is  our  opinion  that  the  juror 
Steele  was  not  a  fair  and  impartial  juror,  though  his  pre- 
conceived opinions  in  the  case  were  not  so  manifestly  pre- 
judicial as  to  render  him  an  unmistakably  incompetent 
juror.  It  is  also  our  opinion  that  he  was  guilty  of  unques- 
tionable misconduct  in  acting  as  he  did  in  the  jury  room, 
and  while  the  jury  were  deliberating  upon  their  verdict,  but 
his  misconduct  was  not  so  flagrantly  wrong,  or  so  manifest- 
ly prejudicial  in  its  influences,  as  to  make  it  clear  that  the 
verdict  might  have  been  affected  thereby.  And  while  we 
think  that  the  court  below  should  have  discharged  the  juror 
Steele  on  account  of  his  admitted  opinions  in  the  case,  yet 
it  is  difficult  for  us  to  say  that  the  court  below  committed 
material  error  in  refusing  to  do  so ;  and  while  we  think  that 
the  court  below  might  very  properly  have  granted  a  new 
trial  on  the  grounds  of  his  prejudice  and  misconduct,  and 
the  previous  failure  on  the  part  of  the  court  to  discharge 
him,  yet  it  is  difficult  for  us  to  say,  under  all  the  circum 
stances  of  the  case,  that  the  court  below  committed  any  ma- 
terial error  in  refusing  to  so  grant  such  new  trial.  Parties 
are  usually  held  to  the  strictest  vigilance  in  impaneling 
juries,  and  generally  if  an  improper  person  is  allowed  to 
remain  on  the  jury  through  the  fault  or  negligence  or  want 
of  proper  diligence  on  the  part  of  any  party,  such  party 
cannot  complain.  In  the  present  case,  the  defendant  knew 
that  the  juror  Steele  believed  that  the  defendant  had  offered 
to  confess  judgment  for  a  certain  amount,  and  it  knew  that 
the  juror  believed  that  he  knew  what  that  amount  was; 
and  yet  the  defendant  failed  to  challenofo  the  juror  peremp- 
torily, although  at  the  completion  of  the  panel  it  still  retain- 
ed one  of  its  peremptory  challenges,  unused  and  unexer- 
cised. "We  think,  under  such  circumstances,  it  would  be 
proper  to  hold  that  the  defendant  was  willing  to  take  the 


644  Teial  Practice  [Chap.  17 

juror  as  he  was,  and  to  take  the  chances  of  his  acting  fairly 
and  impartially  in  the  case;  and  that  if  he  did  not  do  so 
with  reference  to  the  facts  of  which  the  defendant  knew  the 
juror  had  knowledge,  the  defendant  should  not  complain. 
A  party  should  not  be  allowed  to  decline  to  exercise  his  per- 
emptory challenges  in  discharging  supposed  incompetent 
jurors,  and  thereby  to  keep  the  question  open  as  to  their 
incompetency  until  after  it  is  ascertained  that  the  verdict 
is  against  him,  and  then  allowed  him  to  again  raise  the 
question  as  to  competency.  He  should  be  compelled  to  use 
all  reasonable  means  to  discharge  all  objectionable  jurors 
before  the  commencement  of  the  trial ;  and  the  failure  to  do 
so  must  be  considered  as  a  waiver  of  all  known  objections. 
And  afterward  if  the  juror  should  act  as  it  might  reason- 
ably be  supposed  he  would  act  under  the  circumstances,  the 
party  failing  to  remove  him,  when  he  could  so  easily  have 
done  so  if  he  had  so  chosen,  should  not  be  allowed  to  com- 
plain. In  the  present  case,  the  incompetency  of  the  juroi' 
was  slight  and  not  very  clear,  and  his  misconduct  was  also 
slight,  and  not  necessarily  prejudicial  to  the  defendant's 
rights,  and  probably  neither  his  incompetency  nor  his  mis- 
conduct had  any  effect  upon  the  verdict  of  the  jury;  but 
even  if  it  had,  it  was  partially  the  fault  of  the  defendant 
in  not  removing  him  by  one  of  its  peremptory  challenges. 
According  to  the  testimony  of  the  several  jurors,  nearly  all 
of  them  were  in  favor  of  assessing  the  damages  at  from 
$1,100  to  $1,200,  instead  of  $1,050,  as  they  finally  did ;  and 
it  seems  almost  certain  that  if  the  juror  Steele  had  not  said 
a  word,  the  verdict  would  not  have  been  any  less  than  it 
was.  Such  seems  to  be  the  testimony  of  all  the  jurors,  and 
their  testimony  was  oral,  and  in  the  presence  of  the  trial 
court.  Hence  we  cannot  say,  under  all  the  circumstances, 
that  the  court  below  committed  material  error  in  refusing  to 
grant  the  defendant  a  new  trial  on  the  ground  of  the  incom- 
petency and  misconduct  of  the  juror  Steele. 
********** 

The  judgment  of  the  court  below  will  be  affirmed. 
All  the  justices  concurring. 


Sec.  3]  New  Teials  645 


Section  3.    Misconduct  of  Jury  or  Paety.^ 

UNDERWOOD  V.  OLD  COLONY  STREET  RAILWAY 

COMPANY. 

Supreme  Court  of  Rhode  Island.    1910. 

31  Rhode  Island,  253, 

Johnson,  J.  *  *  * 

After  verdict,  the  defendant  in  due  time  filed  a  motion  for 
a  new  trial  upon  the  following  grounds : 

"Sixth.  That  said  defendant  did  not  have  a  fair  trial  of 
said  cause  before  a  competent  and  impartial  jury,  inasmuch 
as  one  member  of  said  jury,  namely,  Louis  Sisson,  was  re- 
peatedly intoxicated  while  said  trial  was  in  progress  and 
testimony  was  being  taken  therein  before  said  jury,  and 
was  asleep  during  a  part  of  the  time  when  said  trial  was  in 
progress  and  testimony  was  being  taken  therein,  and  was 
biased  and  prejudiced  against  the  defendant,  as  shown  by 
remarks  made  by  him  to  other  persons  while  said  cause 
was  being  tried  and  during  adjournments  taken  bv  said 
court,  and  misconducted  himself  in  other  ways,  all  of  which 
will  be  shown  by  affidavits  to  be  filed  in  court  in  support 
of  this  motion,  said  affidavits  when  filed  to  become  a  part 

of  this  motion  by  reference. 

***     *     #    *    *     *     *     *    *j) 

After  hearing  counsel  and  considering  the  affidavits,  the 
trial  justice  denied  the  motion  so  far  as  it  was  based  on  the 
verdict  being  against  the  evidence  and  the  weight  thereof, 
and  against  the  law.  He  also  denied  it  so  far  as  based  up- 
on the  condition  and  misconduct  of  the  juror  Sisson  and  his 

bias  and  prejudice.  *  *  * 

********** 

(1)  We  have,  therefore,  in  this  case,  a  mass  of  testi- 
mony to  the  effect  that,  for  at  least  two  days,  a  juror,  dur- 
ing the  progress  of  the  trial  was  so  much  under  the  in- 
fluence of  liquor  that  he  was  asleep  a  large  part  of  the 
time.    He  so  far  lost  his  power  of  self-control  as  to  be  un- 

1  As  to  misconrluct  of  an  attorney  ns  ground  for  a  new  trial,  see  cases  under 
"Argument  and  Conduct  of  Counsel,"  s^ipra,  Chapter  XII. 


646  Trial  Peactice  [Chap.  17 

able  to  walk  steadily  in  and  out  of  the  jury-box,  and  by 
his  foolish  and  childish  actions,  while  testimony  was  being 
put  in,  revealed  his  own  inattention  and  disturbed  the  jurors 
near  him.  He  was  boisterous  and  profane  in  his  language, 
and  talked  freely  about  the  case  with  strangers  during  the 
court  recesses.  According  to  a  great  number  of  witnesses, 
he  was,  during  the  court  proceedings,  so  much  intoxicated 
that  it  was  impossible  for  him  to  understand  and  weigh  in- 
telligently the  evidence  that  was  introduced  in  the  case. 

The  authorities  are  unamimous  in  recognizing  the  grave 
danger  of  the  use  of  intoxicating  liquor  by  jurors,  and  con- 
demn in  the  strongest  terms  the  indulgence  in  drinking  by 
jurors  while  sitting  in  the  trial  of  a  case.  Some  jurisdic- 
tions, especially  Iowa  and  Texas,  have  held  that  the  mere 
fact  of  drinking  spirituous  liquors  by  jurymen  during  the 
trial  of  a  case,  without  regard  to  the  quantity  used  or  itfe 
effect,  is  sufficient  ground  for  the  granting  of  a  new  trial. 
Ryan  v.  Harroiv,  27  Iowa,  494;  Jones  v.  The  State,  13 
Texas,  168. 

The  great  weight  of  authority,  however,  is  in  favor  of  the 
proposition  that,  if  a  juror,  during  the  progress  of  the  trial, 
drinks  intoxicating  liquor  to  such  an  extent  that  he  is  in- 
toxicated or  under  the  influence  of  liquor  so  that  his  facul 
ties  are  affected,  while  sitting  in  the  case,  the  verdict  should 
be  set  aside.  Perry  v.  Bailey,  12  Kan.  539 ;  Hedican  v.  Pa. 
Fire  Ins.  Co.,  21  Wash.  488;  Broivn  v.  The  State,  137  Ind. 
240 ;  State  v.  Ned,  105  La.  696 ;  State  v.  Jenkins,  116  No.  Car. 
972;  Davis  v.  Cook,  9  Nev.  134;  17  Amer.  &  Eng.  Encyc. 
Law,  p.  1234. 

Perry  v.  Bailey,  supra,  was  a  case  in  which  two  affidavits 
were  filed,  stating  that  one  of  the  jurors,  during  the  pro- 
gress of  the  trial,  had  been  under  the  influence  of  liquor. 
The  court  held  that,  although  the  affidavits  were  not  full 
and  positive  yet  it  was  clear  that  the  juror  had  drunk  so 
much  as  to  unfit  him  for  the  proper  discharge  of  his  duty, 
and  consequently  the  verdict  should  be  set  aside.  In  the 
opinion.  Judge  Brewer,  said,  at  page  546: 

"We  tliink  however,  the  great  weight  of  authority  estab- 
lishes these  propositions:  That  if  a  juror  during  the  pro- 
gress of  the  trial  drinks  intoxicating  liquor  on  the  invita- 
tion and  at  the  expense  of  the  party  who  afterwards  has  the 
verdict,  or  if  at  his  own  expense  he  drinks  so  much  as  to 


Sec.  3]  New  Teials  647 

be  under  the  influence  of  liquor  while  sitting  in  the  case,  the 
verdict  ought  not  to  stand ;  and  on  the  other  hand,  the  mere 
drinking  of  spirituous  and  intoxicating  liquors  by  a  juror 
during  the  progress  of  a  trial  is  not,  in  and  of  itself,  suffi- 
cient to  set  aside  a  verdict  (authorities).  Aware  as  all  are 
of  the  subtle  and  potent  influence  of  liquor  on  the  brain,  no 
judge  should  for  a  moment  permit  a  trial  to  proceed  where 
it  appeared  that  any  juror  was  under  the  influence  of  intox- 
icating drink,  or  permit  a  verdict  to  stand  which  was  not 
the  cool,  deliberate  judgment  of  sober  men." 

Hedican  v.  Pa.  Fire  Ins.  Co.,  supra,  was  a  case  where, 
during  the  trial  at  an  evening  session  of  the  court  and  dur- 
ing the  defendant's  argument,  a  juror  was  intoxicated. 
This  fact  was  brought  to  the  attention  of  the  court  after 
the  session  was  concluded  and  the  court  permitted  counsel 
at  the  following  morning  session  to  make  their  arguments 
without  limitation  as  to  time.  All  the  testimony  had  been 
put  in  before  the  juror  became  intoxicated,  and  this  fact 
was  urged  against  the  motion  for  a  new  trial.  The  court 
held  that  a  new  trial  must  be  granted  because  of  the  miscon- 
duct of  the  juror.     The  court  said,  at  page  490 : 

"Parties  are  entitled  to  have  a  cause  submitted  only  to 
sober  jurors,  and  the  court  will  not  undertake  an  inquiry  in- 
to the  state  or  condition  of  mind  of  a  juryman  who  has  been 
intoxicated  during  the  progress  of  a  trial,  but  will  assume 
that  he  was  incompetent  to  determine  the  cause.  Drunk- 
enness during  the  progress  of  a  trial  is  not  only  the  gravest 
breach  of  a  juryman's  duty,  but  it  is  also  a  most  serious 
contempt  of  the  court  and  the  administration  of  the  law.** 

In  Brouni  v.  The  State,  supra,  the  court  granted  a  new 
trial  on  the  ground  of  intoxication  of  one  of  the  jurors  dur- 
ing the  trial  and  at  page  241  said : 

"It  seems  to  be  well  settled  in  this  state  as  well  as  in 
other  jurisdictions  that  drinking  intoxicating  liquor  during 
the  recess  of  the  court  is  not  such  misconduct  of  the  juror 
as  vitiates  the  verdict,  unless  the  drinking  is  to  such  an  ex- 
tent as  to  produce  intoxication;  but  where  a  juror  drinks 
to  such  an  extent  as  to  become  intoxicated,  such  conduct  ren- 
ders the  verdict  invalid  and  the  court,  upon  proof  of  such 
misconduct,  should  set  it  aside  and  grant  a  new  trial." 

In  Davis  v.  Cook,  supra,  the  court  said,  at  page  147 : 

"In  vindication  of  the  character  of  courts  and  the  purity 


648  Tbial  Peactice  [Chap.  17 

of  jury  trials  a  verdict  participated  in  by  a  jury-man  with 
passions  inflamed  and  reason  impaired  by  ardent  spirits 
should  not  be  allowed  to  stand.  Trial  by  jury  regarded  by 
our  ancestors  as  the  principal  bulwark  of  their  liberties  and 
the  glory  of  the  English  law,  would  degenerate  into  a  mock- 
ery of  justice  if  verdicts  were  capriciously  determined  by 
intoxicated  jurors.     The  judgment  must  be  reversed." 

In  American  &  Eng.  Ency.  of  Law,  supra,  the  law  is 
stated  to  be  as  follows : 

^'If  during  the  progress  of  the  trial  or  during  their  de- 
liberations on  the  verdict  jurors  partake  of  intoxicating 
liquors  to  such  an  extent  as  to  affect  their  ability  clearly, 
impartially  and  calmly  to  consider  the  evidence  the  verdict 
will  be  set  aside ;  and  the  rule  applies,  it  seems,  where  such 
an  inordinate  amount  is  drunk  as  to  make  a  juror  sick^  or 
to  render  it  probable  that  he  was  incapacitated." 

The  cause  is  remanded  to  the  Superior  Court  for  a  new 
trial. 


CEAIG  &  COMPANY  V.  PIERSON  LUMBER  COM- 
PANY. 

Supreme  Court  of  Alabama.     1910. 

169  Alabama,  548. 

DOWDELL,  C.  J.     *   *   * 

The  main  question  in  this  case  arises  out  of  the  action 
of  the  trial  court  in  denying  the  motion  for  a  new  trial. 
The  principal  ground  of  the  motion  was  the  alleged  im- 
proper conduct  of  J.  0.  Acree,  one  of  the  parties  to  the 
suit.  It  was  not  denied  on  the  hearing  of  the  motion  that 
after  the  evidence  in  the  case  was  conchided,  and  the  court 
had  recessed  for  dinner,  before  hearing  the  argument, 
Acree  invited  one  of  the  jurors  trying  the  case  to  dine  with 
him  at  a  certain  hotel,  which  invitation  was  accepted,  and 
that  vXoree  paid  for  the  juror's  dinner.  ''Misconduct  or  ir- 
regularity on  the  part  of  the  jurors,  if  not  induced  by  the 


Sec.  3]  New  Trials  649 

prevailing  party,  will  not  ordinarily  be  ground  for  setting 
aside  the  verdict,  unless  it  was  calculated  to  prejudice  the 
unsuccessful  party.  When,  however,  the  misconduct  is  due 
directly  to  an  improper  act  by  the  prevailing  party,  the 
verdict  will  be  set  aside  without  reference  to  the  question  of 
resulting  injury." — 17  Am.  &  Eng.  Ency.  Law  (2d  Ed.) 
p.  1204.  "It  is  the  general  rule  that  a  new  trial  will  be 
granted  if  jurors  .ire  entertained  during  the  trial  by  the 
party  in  whose  favor  a  verdict  is  rendered.  So  it  has  been 
held  ground  for  a  new  trial  that  the  prevailing  party  fur- 
nished jurors  with  cigars  or  intoxicating  liquors." — Id.  p. 
1235. 

Aside  from  protecting  the  rights  of  parties,  in  the  fair 
and  impartial  administration  of  justice,  respect  for  the 
courts  calls  for  their  condemnation  of  any  improper  con- 
duct, however  slight,  on  the  part  of  a  juror,  of  a  party,  or  of 
any  other  person,  calculated  to  influence  the  jury  in  return- 
ing a  verdict.  So  delicate  are  the  balances  in  weighing  jus- 
tice that  what  might  seem  trivial  under  some  circumstances 
would  turn  the  scales  to  its  perversion.  Not  only  the  evil, 
in  such  cases,  but  the  appearances  of  evil,  if  possible,  should 
be  avoided. 

The  learned  judge  who  tried  the  case  below,  in  overruling 
the  motion  for  a  new  trial,  evidently  proceeded  on  the  theory 
that  the  defendants  waived  their  right  of  objection  in  fail- 
ing to  bring  the  matter  to  the  attention  of  the  court  at  their 
first  opportunity  after  knowledge  acquired  by  them  or  their 
attorney  of  the  alleged  misconduct  of  the  said  Acree.  Here 
the  knowledge  was  acquired  during  the  recess  period  of  the 
court  for  dinner  or  lunch,  and  on  the  reconvening  of  the 
court,  without  objection  made,  the  argument  of  the  case 
proceeded,  and  the  charge  of  the  court  to  the  jury  was  giv- 
en, and  the  jury  permitted  to  retire  to  make  a  verdict,  and 
not  until  a  motion  for  a  new  trial  was  the  alleged  miscon- 
duct made  known  to  the  court. 

The  general  rule  is  that,  in  the  impaneling  of  a  jury,  mat- 
ter going  to  the  disqualification  of  a  juror,  if  within  the 
knowledge  of  a  party  or  his  attorney,  should  be  taken  on 
objection  at  the  time  the  juror  is  put  upon  him  for  accept- 
ance or  rejection;  and  a  failure  to  so  object  is  accounted  a 
waiver  on  his  part  of  the  objection.  But  this  rule  does  not 
and  should  not  apply  in  case  of  misconduct  on  the  part  of 


050  Trial  Practice  [Chap.  17 

a  juror,  arising  after  his  acceptance  as  such  and  a  trial 
entered  upon.  In  the  present  case  the  alleged  misconduct 
was  that  of  a  part}^,  and  the  remedy  of  the  injured  party 
was  by  a  motion  to  set  aside  the  verdict  and  for  a  new  trial. 
It  is  true  he  might  have  brought  the  matter  to  the  attention 
of  the  court  before  proceeding  further  with  the  trial,  but  his 
failure  to  do  so  ought  not  to  deprive  him  of  his  remedy  on 
a  motion  for  a  new  trial.  It  does  not  lie  in  the  mouth  of 
the  party  guilty  of  the  misconduct  to  object  on  the  ground 
of  speculating  on  the  verdict  of  the  jury,  since  his  own  mis- 
conduct produced  the  conditions.  To  require  a  party  to 
make  his  objection  pending  the  trial  might  still  further  pre- 
judice him,  especially  if  it  should  happen  that  he  was  mis- 
taken in  making  the  charge,  though  ever  so  honest. 

We  are  of  opinion  that  the  motion  for  a  new  trial  should 
have  been  granted,  and  that  the  court  erred  in  refusing  it. 

For  the  errer  of  overruling  the  motion  for  a  new  trial, 
the  judgment  is  reversed,  and  the  cause  remanded. 

Reversed  a/nd  remanded. 
Anderson,  Sayre,  and  Evans,  JJ.,  concur. 


BAKER  V.  BROWN. 

Supreme  Court  of  North  Carolina.    1909, 

151  North  Carolina,  12. 


#  *  * 


Walker,  J. — 

The  defendant  moved  to  set  aside  the  verdict  because  the* 
plaintiff  had  talked  to  one  of  the  jurors.  This  was  not 
])roper  conduct  on  the  part  of  the  plaintiff,  when  unexplain- 
ed, i)ut  the  evidence  shows  that  it  was  inadvertent  and  that 
what  he  said  did  not  even  remotely  relate  to  the  case  tried 
by  the  jury  of  which  he  was  a  member,  and  was  utterly 
harmless.  It  had  no  influence  whatever  upon  the  jury  or 
the  juror  with  whom  the  plaintiff  talked,  and  the  Court  so 
finds  the  facts  to  be.  As  was  said  by  Judge  Pearson,  in 
Slate  V.  Tilghman,  33  N.  C,  at  p.  552,  ''Perhaps  it  would 


Sec.  3]  New  Trials  651 

have  been  well  had  his  Honor,  in  his  discretion,  set  aside 
the  verdict  and  given  a  new  trial  as  a  rebuke  to  the  jury 
and  an  assertion  of  the  principle  that  trials  must  not  only 
be  fair,  hut  above  suspicion.  This,  however,  was  a  matter 
of  discretion,  which  we  have  no  right  to  reverse.  Our  in- 
quiry is,  was  the  misconduct  and  irregularity  such  as  to 
vitiate  the  verdict,  to  make  it  in  law  null  and  void  and  no 
verdict?"  That  case  is  an  authority  for  the  position  that, 
under  the  facts  of  this  case,  the  motion  for  a  new  trial  was 
addressed  to  the  sound  discretion  of  the  court.  "When  the 
circumstances  are  such  as  merely  to  put  suspicion  on  the 
verdict  by  showing,  not  that  there  ivas,  but  that  there  might 
have  been  undue  influence  brought  to  bear  upon  the  jury, 
because  there  was  opportunity  and  a  chance  for  it,  it  is  a 
matter  within  the  discretion  of  the  presiding  judge;  but  if 
the  fact  be  that  undue  influence  was  brought  to  bear  upon 
the  jury,  as  if  they  were  fed  at  the  charge  of  the  prosecutor 
or  prisoner,  then  it  would  be  otherwise."  State  v.  Brit 
tain,  89  N.  C.  483.  See,  also,  State  v.  Harper,  101  N.  C. 
r61;  State  v.  Morris,  84  N.  C.  757;  State  v.  Tilghman,  su- 
pra; State  V.  Gould,  90  N.  C.  658;  State  v.  Barber,  89  N.  C. 
523.  In  Moore  v.  Edmiston,  70  N.  C.  at  p.  481,  Justice  By- 
num,  for  the  Court,  thus  formulates  the  rule:  ''The  line  of 
distinction  is  that  to  vitiate  and  avoid  a  verdict  it  must  ap- 
pear upon  the  record  that  undue  influence  was  brought  to 
bear  on  the  jury.  All  other  circumstances  of  suspicion  ad- 
dress themselves  exclusively  to  the  discretion  of  the  presid- 
ing judge  in  granting  or  refusing  a  new  trial.  He  is  clothed 
with  this  power  because  of  his  learning  and  integrity  and  of 
the  superior  knowledge  which  his  presence  at  and  participa- 
tion in  the  trial  gives  him  over  any  other  forum.  However 
great  and  responsible  this  power,  the  law  intends  that  the 
judge  will  exercise  it  to  further  the  ends  of  justice;  and 
though  doubtless  it  is  occasionally  abused,  it  would  be  diffi- 
cult to  fix  upon  a  safer  tribunal  for  the  exercise  of  this  dis- 
cretionary power,  which  must  be  lodged  somewhere."  It 
does  not  appear  in  this  case  that  the  jury  were  influenced  in 
the  slightest  degree,  in  deciding  upon  their  verdict,  by  what 
the  plaintiff  said  to  one  of  the  jurors.  On  the  contrary,  it 
appears  that  they  were  not  and  could  not  have  been  so  in- 
fluenced. 


652  Teial,  Pkactice  [Chap.  17 

Upon  a  review  of  the  whole  case,  we  find  no  error  in  the 
rulings  and  judgment  of  the  court. 
No  error. 


FLESHER  V.  HALE. 

Supreme  Court  of  Appeals  of  West  Virginia.    1883. 

22  West  Virginia,  44. 

This  is  a  writ  of  error  to  an  order,  made  by  the  circuit 
court  of  Lewis  county,  March  16, 1882,  setting  aside  the  ver- 
dict of  the  jury  and  granting  a  new  trial  in  an  action  of 
assumpsit  brought  by  the  plaintiff  in  error  in  the  county 
court  of  said  county,  February  29,  1879,  against  the  defend- 
ant in  error  for  one  thousand  six  hundred  and  forty-seven 
dollars  and  eighty-four  cents,  and  transferred  by  operation 
of  law  to  said  circuit  court  before  trial.  The  defendant 
pleaded  non  assumpsit  and  filed  specifications  of  set-off,  and 
the  verdict  was  for  two  hundred  and  seventy-one  dollars 
and  twenty-seven  cents  in  favor  of  the  plaintiff.  After  the 
rendition  of  the  verdict  the  defendant  moved  the  court  to 
set  the  same  aside,  which  motion  the  court  sustained  and  the 
plaintiff  excepted  and  tendered  his  bill  of  exceptions,  which 
shows  that  the  defendant  in  support  of  his  motion  read 
three  several  affidavits  in  which  the  affiants  state,  that  Al- 
len Snow,  one  of  the  jurors  who  tried  the  case,  was  intoxi- 
cated and  drunk  to  such  a  degree  that  most  of  the  time  dur- 
ing the  argument  he  was  asleep  and  incapable  of  rendering 
a  decision  or  determining  the  case  in  the  manner  and  way 
of  a  sober  juror. 

Snyder,  Judhe: 

The  court  having  set  aside  the  verdict  and  granted  a  new 
trial  upon  the  facts  before  stated,  the  single  question  pre- 
sented to  this  Court  is,  did  the  court  in  so  doing  err?  Our 
statute  provides  that: 

'*No  irregularity  in  any  writ  of  venire  facias,  or  in  the 
drawing,  summoning,  or  impaneling  of  jurors,  shall  be  suffi- 
cient to  set  aside  a  verdict,  unless  the  party  making  the  ob- 


Sec.  3]  New  Trials  653 

jection  was  injured  by  the  irregularity,  or  unless  the  ob- 
jection was  made  before  the  swearing  of  the  jury."  Acts 
1882,  sec.  19,  chap.  83,  p.  190. 

Applying  the  spirit  of  said  statute  and,  perhaps,  extend- 
ing the  rule  and  policy  of  it,  the  courts  Virginia  and  of  this 
State  have  repeatedly  held,  and  it  is  now  the  settled  law 
of  this  State,  in  both  criminal  and  civil  trials,  that  the  ver- 
dict of  the  jury  will  not  be  set  aside  for  objections  to 
jurors,  on  grounds  which  existed  before  they  were  sworn, 
unless  it  is  made  to  appear  that  by  reason  of  the  existence 
of  such  grounds  the  party  objecting  has  suffered  wrong  or 
injustice.  Sweeney  v.  Baker,  13  W.  Va.  228,  and  cases 
there  cited.  In  this  class  of  cases  the  objections  to  the 
jurors  were  of  such  character  that,  if  made  before  the  jury 
was  sworn,  they  would  have  been  sustained  and  the  jurors 
objected  to  held  to  be  disqualified;  but  notwithstanding  this 
and  the  fact  that  the  parties,  were  ignorant  of  any  grounds 
of  disqualification  until  after  the  verdict,  the  court  refused 
to  set  aside  the  verdict,  because  it  did  not  appear  that  said 
grounds  had  operated  so  as  to  inflict  injustice. 

The  rule  is,  however,  different  in  cases  where  the  disquali- 
fication arises  from  the  misconduct  of  the  jurors  after  they 
have  been  sworn.  While  it  requires  clear  and  satisfactory 
proof  to  establish  misconduct  in  a  member  of  the  jury  after 
he  has  been  sworn,  because  the  presumption  of  right  acting 
which  obtains  with  reference  to  the  conduct  of  every  per- 
son acting  in  an  official  position  unless  the  contrary  is 
shown,  applies  in  full  force  with  reference  to  the  conduct 
of  sworn  jurors,  yet  when  misconduct  is  established  of  such 
a  nature  that  prejudice  might  have  resulted  from  it,  a  pre- 
sumption of  prejudice  arises  from  it,  which  unless  rebutted 
by  the  successful  party  will  vitiate  the  verdict  and  require 
a  new  trial.  Woods  v.  State,  43  Miss.  364-72 ;  State  v.  Car- 
tiirigU,  20  W.  Va.  32;  State  v.  Robinson,  Id.  713. 

''Where  facts  are  established  which  show  that  improper 
influences  were  brought  to  bear  upon  the  jury,  or  that  they 
were  guilty  of  improper  conduct,  such  as  might  have  result- 
ed prejudicially  to  the  losing  party,  a  presumption  arises 
against  the  purity  of  their  verdict ;  and  unless  there  is  testi- 
mony which  shows  that  their  verdict  was  not  affected  by 
such  influences  or  conduct,  it  will  be  set  aside;  and  the  bur- 
den of  producing  such  testimony  is  upon  the  party  claiming 


654  Trial  Practice  [Chap.  17 

the  right  to  keep  the  vardict.  The  rule  is  one  of  public 
policy.  In  order  to  preserve  public  confidence  in  the  ad- 
ministration of  justice,  it  is  not  only  necessary  that  judicial 
trials  should  be  conducted  with  reasonable  regularity,  but 
that  verdicts  should  be  free  from  the  taint  of  suspicion  of 
improper  conduct  or  influences." — Thomp.  &  Mer.  on 
Juries,  §439;  Phillip's  Case,  19  Gratt.  485;  Com.  v.  Bohy, 
12  Pick.  496;  Thompson  v.  State,  26  Ark.  323. 

While  these  are  the  general  rules  established  by  the 
courts  in  regard  to  verdicts  where  the  disqualification  or 
misconduct  of  the  jurors  was  unknown  to  the  parties  until 
after  verdict,  there  is  another  rule  which  limits  these  rules 
and  applies  to  all  classes  of  cases,  whether  the  disqualifica- 
tion of  the  jurors  existed  before  being  sworn  or  arose  out 
of  misconduct  during  the  trial.  All  the  authorities  agree 
that,  where  a  new  trial  is  asked  on  account  of  irregularity 
or  misconduct  of  the  jury,  it  must  appear  that  the  party 
so  asking  called  the  attention  of  the  court  to  it  at  the  time 
it  was  first  discovered  or  as  soon  thereafter  as  the  course 
of  the  proceedings  would  permit,  and  if  he  fail  or  neglect 
to  do  so,  he  will  be  held  to  have  consented  to  have  vvaived 
all  objections  to  such  irregularity  or  misconduct,  and,  un- 
less it  be  a  matter  which  could  not  have  been  waived,  or 
which  could  not  have  been  remedied  or  obviated,  if  attention 
had  been  called  to  it  at  the  time  it  was  first  discovered, 
he  will  be  estopped  from  urging  it  as  a  ground  for  a  new 
trial. — Diliuorth's  Case,  12  Gratt.  689;  Coleman  v.  Moody, 
4  H.  &  M.  1 ;  Dower  v.  Church,  21  W.  Va.  23 ;  Fox  v.  Hazel- 
ton,  10  Pick.  275;  Oleson  v.  Mender,  40  Iowa,  662;  Tjee  v. 
McLeod,  15  Nev.  158;  State  v.  Tidier,  34  Conn.  280;  Dolloff 
V.  Stimpson,  33  Me.  546;  Martin  v.  Tidwell,  36  Gn.  332; 
Parks  V.  State,  4  Ohio  St.  234 ;  State  v.  Daniels,  44  N.  H.  383. 

The  knowledge  of  the  attorney  in  such  case  is  the  knowl- 
edge of  his  client. — Russell  v.  Quinn,  114  Mass.  103;  Fessen- 
den  V.  Sayer,  53  Me.  531 ;  Parker  v.  State,  55  Miss.  414 ; 
Cox  V.  People,  80  N.  Y.  500. 

This  rule  proceeds  upon  the  ground  that  a  party  ought 
not  to  be  permitted,  after  discovering  an  act  of  misconduct 
which  would  entitle  him  to  claim  a  new  trial,  to  remain  si- 
lent and  take  his  chances  of  a  favorable  verdict,  and  after- 
wards, if  the  verdict  is  against  him,  liring  it  forward  as  a 
ground  for  a  new  trial.     A  party  cannot  be  permitted  to 


Sec.  3]  New  Trials  655 

lie  by,  after  having  knowledge  of  a  defect  of  this  charac- 
ter, and  speculate  upon  the  result,  and  complain  only  when 
the  verdict  becomes  unsatisfactory  to  him. — Selleck  v. 
Sugar  H.  T.  Co.,  13  Conn.  453;  Orrok  v.  Com.  his.  Co.,  21 
Pick.  456;  Rex  v.  Sutton,  8  Barn.  &  Cres.  417. 

It  follows,  therefore,  that  when  a  party  moves  for  a  new 
trial  on  the  ground  of  misconduct  on  the  part  of  the  jury, 
which  took  place  during  the  trial,  he  must  aver  in  his  mo- 
tion and  show  affirmatively  that  both  he  and  his  counsel 
were  ignorant,  until  after  the  jury  had  retired,  of  the  fact 
of  such  misconduct.  Thomp.  &  Mer.  on  Juries,  §  428  and 
cases  cited ;  Id.  §  456. 

In  the  case  at  bar,  the  counsel  certainly,  and,  we  may 
presume  from  his  being  present  at  the  trial,  the  defendant 
also  had  notice  of  the  misconduct  of  the  juror,  Snow,  at  the 
time  it  occurred.     In  fact,  ''it  was  mutually  agreed  that  tht? 
case  might  be  tried  and  determined  by  the  remaining  eleven 
jurors."     This  agreement  was  made  in  the  presence  of  the 
judge  of  the  court  by  the  counsel  both  of  the  plaintiff  and 
defendant.    After  this  agreement  was  made,  no  motion  or 
effort  was  made  to  remove  the  said  Snow  from  the  jury 
box.     He  was  not  even  requested  to  retire,  and,  probably, 
he  had  no  knowledge  of  the  agreement,  and  so  he  contin- 
ued on  the  jury.     Afterwards  when,  during  the  subsequent 
])rogress  of  the  trial,  the  court  called  attention  to  the  fact 
tliat  said  Snow  was  still  on  the  jury,  the  counsel  for  the 
plaintiff  and  defendant  ''agreed  that  it  was  immaterial  what 
l)ecame  of  said  Snow,"  and  he  was,  no  doubt,  in  conse- 
quence of  said  agreement  allowed  to  remain  on  the  jury  un- 
til after  the  verdict.     Certainly  by  this  conduct  the  defend- 
-nt  consented  to  have  the  said  Snow  remain  on  tlie  jury 
after  he  knew  of  his  misconduct,  and,  under  the  rule  of  law 
before  stated,  he  thereby  waived  all  right  to  object  to  the 
verdict  on  that  ground  and  estopped  himself  from  relying 
on  said  misconduct  as  a  ground  for  a  new  trial,  unless  his 
situation  and  rights  were  such  at  the  time  he  made  the  dis- 
covery, that  the  objection  could  not  have  been  obviated,  or 
that  ills  right,  was  such  that  no  waiver  or  consent  could 
conclude  him. 

If  he  had  made  the  objection  and  insisted  on  it,  the  court 
could,  under  our  statute,  have  had  another  juror  sworn  in 
his  place.     Code,  ch.  159,  <^  7.    Or  by  consent  the  cause 


656  Trial  Practice  [Chap.  17 

might  have  been  tried  by  the  court,  or  by  the  remaining 
jurors  or  seven  of  them.  Code,  ch.  116,  §  29;  Dilworth's 
Case,  12  Gratt.  708;  Tooel's  Case,  11  Leigh.  714;  State  v. 
Van  Matre,  49  Mo.  268. 

The  objection,  therefore,  if  it  had  been  made  could  have 
been  obviated  at  the  time,  and  that  the  rights  of  the  defend- 
ant were  such  that  he  could  waive  them  is  equally  clear. 
This  is  a  civil  action  and  in  such  cases  any  consent  of  the 
parties  is  binding.  They  relate  to  and  affect  only  individ- 
ual rights  which  are  entirely  within  their  personal  con- 
trol, and  which  they  may  part  with  at  their  pleasure.  The 
design  of  such  actions  is  the  enforcement  of  merely  pri- 
vate obligations  and  duties.  Any  departure  from  legal 
rules  in  the  conduct  of  such  actions  with  the  consent  of  the 
litigants  is,  therefore,  a  voluntary  relinquishment  of  what 
belongs  to  them  exclusively. — Thomp.  &  Mer.  on  Juries,  § 
8;  Cancemi  v.  People,  18  N.  Y.  128;  Durham  v.  Hudson,  4 
Ind.  501;  Comonwealth  v.  Dailey,  12  Cush.  80;  Sarah  v. 
State,  28  Ga.  576. 

Upon  the  foregoing  authorities  as  well  as  upon  justice 
and  reason  it  is  plain,  that  the  defendant  could  have  waived 
as  in  fact  he  did  waive  the  irregularity  arising  from  the 
misconduct  of  the  said  juror.  Snow,  and  his  conduct  and  ac- 
quiescence after  he  was  apprised  of  the  misconduct  of  said 
juror,  in  permitting  him  to  remain  on  the  jury,  must  be  re- 
garded as  a  consent  that  he  should  so  remain  notwithstand- 
ing such  misconduct;  and,  consequently,  it  would  be  unjust 
to  permit  the  defendant,  after  having  taken  his  chance  of 
a  favorable  verdict,  to  take  an  advantage  of  an  irregulari- 
ty, which  he  had  waived  and  consented  to,  for  the  purpose 
of  avoiding  an  unfavorable  verdict. 

I  am,  therefore,  of  opinion  that  the  said  order  of  the 
circuit  court  setting  aside  the  verdict  of  the  jury  and  grant- 
ing a  new  trial  is  erroneous  and  must  be  reversed  with  costs 
to  the  plaintiff  in  error;  and  this  Court  proceeding  to  enter 
such  judgment  as  the  said  court  ought  to  have  entered,  it 
is  considered  that  the  defendant 's  motion  to  set  aside 
the  verdict  be  overruled  and  that  the  plaintiff  recover  from 
the  defendant  the  sum  of  two  hundred  and  seventy-one 
dollars  and  twenty-seven  cents,  the  amount  of  the  verdict 
of  the  jur}^,  with  interest  thereon  from  the  16th  day  of 
March,  1882,  till  paid  and  his  costs  in  the  prosecution  of  his 


Sec.  3]  New  Trials  657 

action  in  said  circuit  court  expended,  which  is  ordered  to 
be  certified  to  said  court. 
The  other  Judges  concurred. 

Judgment  reversed. 


CORLEY   V.    NEW   YORK   &   HARLEM   RAILROAD 

COMPANY. 

Appellate  Division  of  the  Supreme  Court  of  New  York. 

1896. 

12  Appellate  Division,  409. 

Baeeett,  J.    (concurring)  *  *  * 

The  affidavits  conclusively  establish  that,  when  the  plain- 
tiff was  called  to  the  witness  stand  during  the  examination 
of  Dr.  Kellogg,  he  made  use  of  crutches  and  was  lifted  and 
helped  along  by  his  father,  and  that  he  returned  to  his  seat 
in  the  same  manner;  but  that,  nevertheless,  for  two  weeks 
and  over  before  the  trial  the  boy  had  entirely  discarded 
his  crutches  in  the  house  where  he  lived,  and  had  done  so 
with  his  mother's  consent.  The  affidavits  stating  that  he 
had  abandoned  the  use  of  crutches  indoors  before  the  trial 
are  numerous  and  uncontradicted.  His  mother,  herself,  de- 
poses that  she  ''did  request  and  instruct  her  son  Martin 
to  use  crutches  at  all  times  within  the  house  and  when  he 
went  without  the  house,  for  the  first  three  or  four  tueeks 
after  his  return  from  the  hospital;  and  that  during  the 
subsequent  intervening  weeks  prior  to  the  trial  your  de- 
ponent requested  and  instructed  her  son  Martin  to  use 
crutches  when  he  ivalked  without  the  house,  upon  the  street, 
and  elsewhere."  It  will  be  observed  that  Mrs.  Corley  here 
pointedly  omitted  to  state  that  after  the  first  three  or  four 
weeks  following  his  return  from  the  hospital  she  gave  her 
son  any  instructions  to  use  crutches  in  the  house.  It  is 
overwhelmingly  established  that,  during  the  latter  period, 
he  never  used  them  in  the  house  and  frequently  omitted 
their  use  out  of  doors.  Indeed,  he  played  and  ran  about 
in  the  streets  quite  the  same  as  other  boys.  Tlie  use  of 
crutches  in  the  court  room  was,  therefore,  wholly  unneces- 
T.  p.— 42 


658  Trial  Practice  [Chap.  17 

sary.  The  boy  had  nothing  to  fear  from  the  people  in  the 
court  room  nor  from  the  narrowness  of  the  aisle  to  be  tra- 
versed on  his  way  to  and  from  the  witness  stand.  But^  if 
he  had  anything  to  fear  from  these  surroundings,  the  dan- 
ger could  only  have  been  enhanced  by  the  use  of  cratches. 
The  reason  which  is  given  for  their  use  seems  quite  shallow. 
It  is,  in  truth,  but  a  transparent  pretense.  There  could 
have  been  but  one  purpose,  and  that  was  to  hoodwink  the 
jury — to  deceive  them  as  to  the  boy's  sufferings  and  to  ap- 
peal to  their  sensibilities.  It  was  bad  enough  to  present 
to  the  jury  the  false  picture  of  a  suffering  boy  upon  crut- 
ches. But  that  was  not  all.  He  was  lifted  up,  helped  upon 
his  crutches,  supported  while  thereon  and  assisted,  as  he 
proceeded,  apparently  with  great  difficulty,  to  and  from  the 
witness  stand.  This  was  a  gross,  and  I  regret  to  say,  a  de- 
liberate deception.  For,  it  appears,  by  uncontradicted 
testimony,  that  immediately  after  the  trial  the  boy  was  se- 
cluded and  rigidly  kept  within  doors.  His  parents  were 
evidently  determined  that  the  spectacle  presented  in  the 
court  room  should  not  be  publicly  followed  by  too  marked 
and  dangerous  a  contrast.  And  yet,  while  he  was  thus 
withdrawn  from  general  observation,  he  was  permitted, 
without  crutch  or  assistance,  to  play  upon  the  roof  of  the 
house  and  actually  to  climb  upon  the  rear  fire  escape. 

It  is  a  mistake  to  suppose  that  a  new  trial  can  only  be 
granted  when  a  case  therefor  can  be  classified  under  some 
well-defined  head  such  as  surprise  or  newly-discovered  evi- 
dence. The  court  is  not  thus  limited.  The  true  rule  is  well 
stated  in  Graham  and  Waterman  on  New  Trials,  1009,  as 
follows:  *'It  need  scarcely  be  said  that  any  unconscionable 
advantage  obtained  during  a  trial  by  one  party  over  the 
other,  through  fraud  or  artifice,  to  the  injury  of  the  latter, 
will  be  good  ground  for  a  new  trial.  So  obvious  a  principle 
of  common  right  and  justice  requires  no  comment  and  needs 
no  illustration."  I  (|uite  agree  that  verdicts  should  not 
lightly  be  disturbed,  and  that  the  court,  in  granting  new 
trials,  should  act  with  great  caution.  But  the  rule  above 
stated — a  rule  which  was  fully  recognized  in  Ward  v.  Town 
of  Southfield  (102  N.  Y.  287) — is  founded  upon  justice  and 
necessity.  It  should  be  firmly  applied  when  the  facts  clear- 
ly warrant  its  application.     I  can  conceive  of  nothing  bet- 


Sec.  4]  New  Trials  659 

ter  calculated  to  encourage  fraudulent  litigation  than  the 
minimizing  of  such  misconduct  as  is  here  disclosed. 

The  order  should,  therefore,  be  reversed,  and  a  new  trial 
granted,  with  costs  of  this  appeal  to  the  appellant.  The 
costs  of  the  former  trial  should  abide  the  event. 


Section  4.    Accident,  Mistake  and  Surprise. 

MEHNERT  V.  THIEME. 

Supreme  Court  of  Kansas.    1875, 

15  Kansas,  368, 

The  opinion  of  the  court  was  delivered  by 
Brewer,  J.:  The  plaintiffs  in  error  were  sued  upon  a 
promissory  note.  Mehnert  filed  an  answer  in  person,  al- 
leging part  payment  to  the  amount  of  $166.10,  and  that  af- 
ter the  maturity  of  the  note  he  and  his  co-defendant  had 
given  a  mortgage  due  in  twelve  months  as  security,  and  that 
this  time  had  not  passed.  They  made  no  appearance  at  the 
trial,  and  judgment  was  rendered  for  the  face  of  the  note 
and  interest.  On  the  same  day  they,  by  an  attorney,  filed 
a  motion  to  vacate  the  judgment,  and  grant  them  a  new  trial, 
on  the  ground  that  they  were  prevented  from  making  their 
defense  by  "accident,  which  ordinary  prudence  could  not 
have  guarded  against,  and  unavoidable  misfortune."  This 
motion  was  overruled,  and  this  is  the  error  complained  of. 
Mehnert 's  affidavit  was  the  only  testimony  offered  upon  said 
motion.  He  testified  that  he  filed  the  arswer,  and  that  it 
was  true;  that  he  lived  twelve  miles  from  Fort  Scott,  where 
the  court  was  in  session;  that  he  had  a  large  amount  of 
stock,  and  no  male  help  on  his  place,  and  was  consequently 
obliged  to  be  home  every  night ;  that  in  order  to  be  present 
in  court  in  time  on  that  morning  he  rose  between  three  and 
four  o'clock,  attended  to  his  home  duties,  and  started  with 
his  team  for  Fort  Scott  between  five  and  six  o'clock,  drove 
with  all  possible  dispatch,  and  made  no  stoppages  on  tlie 
road;  that  he  reached  the  court-house  about  ten  o'clock 
and  found  that  the  case  had  been  called  and  disposed  of  a 


660  Teial  Pbactice  [Chap.  17 

few  minutes  prior  thereto ;  that  the  delay  in  driving  in  was 
caused  by  the  bad  almost  impassable  condition  of  the  roads. 
Was  this  accident  which  ordinary  prudence  could  not  have 
guarded  against,  or  unavoidable  misfortune?  It  does  not 
appear  that  the  roads  were  for  that  season  of  the  year,  De- 
cember, exceptionally  bad,  or  that  by  an  unexpected  change 
in  the  weather  they  had  become  suddenly  bad,  or  that  Meh- 
nert  did  not  by  frequent  travel  have  full  knowledge  of  their 
actual  condition.  At  that  time,  it  is  no  uncommon  thing 
for  country  roads  to  be  very  rough,  and  in  very  bad  condi- 
tion. Common  prudence  would  dictate  that  one  who  was 
acting  as  an  attorney,  and  attending  to  business  in  court 
then  in  session,  should  not  run  the  risk  of  getting  into  court 
in  the  morning  over  such  roads  from  a  remote  part  of  the 
county.  The  real  difficulty  was,  that  Mehnert  was  attempt- 
ing to  perform  the  double  part  of  suitor  and  attorney. 
While  this  is  perfectly  proper,  yet  whoever  attempts  it  sub- 
jects himself  to  the  obligations  and  liabilities  of  both.  It 
is  the  duty  of  an  attorney  having  business  in  court  to  be 
present  during  its  sessions.  There  is  his  business ;  there  is 
his  work.  Oftentimes  that  which  will  excuse  the  absence  of 
a  suitor,  will  come  far  short  of  excusing  the  absence  of  his 
attorney.  Now,  Mehnert,  was  acting  as  an  attorney,  in- 
trusted with  business  in  the  court  then  in  session.  Instead 
of  employing  some  one  to  take  care  of  his  stock  on  his  farm, 
and  being  himself  in  readiness  to  attend  to  his  case,  he  is 
with  full  knowledge  of  his  great  distance  from  the  court- 
house, and  the  almost  impassable  condition  of  the  roads,  at- 
tempting to  take  care  of  both  stock  and  lawsuit.  He  suc- 
ceeded in  the  former,  but  failed  in  the  latter,  and  failed 
simply  from  omitting  the  ordinary  precautions  which  men 
take  under  similar  circumstances.  Hill  v.  Williams,  6  Kas. 
17. 

The  judgment  will  be  affirmed. 

All  the  justices  concurring. 


Sec.  4]  New  Trials  661 

GKIFFIN  V.  O'NEIL. 

Supreme  Court  of  Kansas.    1891, 
47  Kansas,  116. 
Opinion  by  Strang,  C.  :  *  *  * 

Was  the  defendant  entitled  to  a  new  trial  because  of  un- 
avoidable accident,  as  claimed  in  his  affidavit  filed  with 
his  motion  for  a  new  trial?  We  think  not.  The  alleged 
accident  consists  in  a  failure  of  the  defendant  to  receive  a 
telegraphic  message  in  time  for  him  to  attend  the  trial  of 
the  case.  The  accident  was  llierely  the  miscarriage  of  an 
arrangement  by  the  plaintiff  with  his  own  attorneys  and 
the  telegraph  operator  at  the  station  nearest  his  home,  for 
the  transmission  and  delivery  to  him  of  a  message  giving 
him  information  concerning  the  trial  of  his  case.  His 
failure  to  receive  the  message  in  time  was  not  the  result  of 
accident  at  all,  but  of  the  negligence  of  his  own  agent.  If 
there  had  arisen  a  storm  of  such  a  character  as  to  have  pre- 
vented the  transmission  of  the  message  over  the  wires  in 
time  to  notify  the  defendant  so  he  could  be  present  at  the 
trial,  or  of  such  a  character  as  to  have  prevented  the  de- 
fendant traveling  to  the  place  of  trial,  it  might  be  said  he 
was  prevented  by  accident,  but  a  mere  failure  of  his  own 
agents  to  do  as  he  alleges  they  promised  to,  in  connection 
with  the  transmission  or  delivery  of  a  message,  is  not  an 
accident.  The  affidavit  shows  that  the  message  was  receiv- 
ed by  the  acent  at  8  o'clock  in  the  morning,  and  that  he  did 
not  get  it  delivered  in  the  country  to  the  defendant  until  it 
was  too  late  for  him  to  attend  the  trial.  It  was  not  the 
business  of  the  agent,  as  the  agent  of  the  telegraph  com- 
pany, to  deliver  the  message  away  from  his  office,  in  the 
country.  He  was  only  required  to  do  so  in  this  instance 
by  his  agreement  with  the  defendant,  and  whatever  he  did 
or  neglected  to  do  under  such  agreement,  he  did  or  neglect- 
ed as  the  agent  of  the  defendant.  We  do  not  think  a  failure 
of  the  defendant's  agent  to  deliver  a  message  to  him,  as 
per  request  or  agreement,  in  time  for  him  to  attend  the 
trial  furnishes  the  defendant  with  any  cause,  known  tc  the 


662  Teial  Peactice  [Chap.  17 

law,  for  a  new  trial.  He  made  an  arrangement  with  his 
own  agents  for  notice.  He  in  no  wise  relied  on  any  ar- 
rangement with  the  plaintitf,  nor  with  the  court.  He  relied 
upon  his  own  agents,  and  without  any  accident  or  excuse, 
so  far  as  we  know,  they  failed  him,  and  we  cannot  relieve 
him  from  the  consequences. 

We  find  no  mateiral  error  in  the  record  of  this  case,  and 
thei:efore  recommend  that  the  judgment  of  the  trial  court 
be  affirmed. 

By  the  court :    It  is  so  ordered. 

All  the  Justices  concurring. 


STAUNTON  COAL  COMPANY  V.  MENK. 

Supreme  Court  of  Illinois.     1902. 
197  Illinois,  369. 

Mr.  Chief  Justice  Mageudee  delivered  the  opinion  of 
the  court : 

The  alleged  ground,  upon  which  it  was  sought  by  the 
appellant  in  the  court  below  to  set  aside  the  verdict  and 
grant  a  new  trial,  was  that  the  circuit  court  tried  the  case 
out  of  its  order  on  the  docket  at  the  request  of  appellee's 
attorneys,  and  without  notice  to  the  appellant,  and  without 
any  good  cause  for  so  trying  the  case  out  of  its  order. 

Second — But,  even  if  the  case  was  set  for  trial  out  of  its 
order  upon  the  docket,  section  16  givQ.  the  court  the  right 
to  take  such  action  for  good  and  sufficient  cause.  That 
section  only  provides,  that  causes  shall  be  tried  in  the  order 
they  are  placed  on  the  docket,  "unless  the  court  for  good 
and  sufficient  cause  shall  otherwise  direct."  It  nowhere 
appears  in  the  affidavits,  that  the  court  did  not  have  good 
and  sufficient  cause  for  setting  the  case  for  trial  on  Wed- 
nesday, October  10,  1900. 

********** 

Third — Tlie  affidavits,  filed  by  the  appellant  in  the  court 
below,  do  not  show  that  duo  diligence  was  exercised  by  it  in 
this  matter,  and  do  not  show  sufficient  excuse  for  not  being 


Sec.  4]  New  Trials  663 

present  in  court  at  the  time  when  the  case  was  set  for  trial. 
Arfidavits,  filed  in  support  of  applications  to  set  aside  judg- 
ments by  default,  or  entered  in  ex  parte  proceedings,  are  to 
be  construed  most  strongly  against  the  party  making  the 
application.     {Grossman  v.  Wolillehen,  90  111.  537). 

According  to  the  statements  in  the  affidavit  of  appellant's 
attorney,  he  knew  that  the  number  of  the  case  at  bar  was 
76  on  the  law  docket  for  the  September  term,  and  that  there 
were  seventy-five  law  cases  and  sixty-four  criminal  cases  on 
that  docket  ahead  of  the  case  at  bar,  and  entitled  to  prior 
trial.  This  being  so,  it  was  the  duty  of  the  appellant  to 
take  notice,  or  at  least  it  is  presumed  to  have  taken  notice 
of  every  step  taken  in  the  cause.  {Schneider  v.  Seihert, 
50  111.  284).  In  his  affidavit  the  attorney  states  that,  in  the 
due  course  of  business,  the  cases  ahead  of  No.  76  could  not 
have  been  tried  in  their  order  before  the  latter  part  of 
October,  or  the  middle  of  November,  1900.  He  also  states 
that  he  wrote  to  the  clerk  of  the  court  on  the  10th  day  of 
October  to  inquire  when  said  cause  would  be  for  trial,  and 
received  notice  on  the  12th  day  of  October  from  the  clerk, 
that  the  case  had  already  been  tried  on  October  10.  The 
attorney  had  no  reason  to  suppose,  so  far  as  is  shown  by 
the  affidavits,  that  the  present  case  would  not  be  reached 
in  its  regular  order  upon  the  docket  before  the  latter  part 
of  October  or  the  middle  of  November,  1900.  There  is 
nothing  to  show,  that  the  case  would  not  have  been  reached 
as  early  as  the  day,  upon  which  it  was  set  for  trial.  It  is 
the  duty  of  a  party  to  be  present  when  his  case  is  reached. 
His  negligence  in  ascertaining  when  the  case  will  be  reached 
does  not  excuse  his  absence.  If  appellant  relied  upon  the 
opinion  of  its  attorney  as  to  the  time  when  the  case  would 
be  reached  for  trial,  it  did  so  at  its  peril.  The  negligence 
of  the  attorney  in  such  matters  is  the  negligence  of  the 
client.  {Mendell  v.  Kimhall,  85  111.  582;  Walsh  v.  Walsh, 
114  id.  655;  Laivler  v.  Gordon,  91  id.  602;  Schidtz  v.  Meisel- 
bar,U4[d.26). 

The  judgment  of  the  Appellate  Court  is  affirmed. 

Judgment  affirmed. 


664  Trial  Peactice  [Chap.  17 


WESTERN     UNION     TELEGRAPH     COMPANY     V. 

CHAMBLEE. 

Supreme  Court  of  Alabama.    1898. 

122  Alabama,  428, 

Haralsott,  J.  *  *  * 

The  defendant  afterwards  moved  the  court  for  a  new 
trial,  which  was  overruled.  The  cause  is  here  on  bill  of  ex- 
ceptions reserved  on  the  trial  of  that  motion.  It  is  based 
on  the  ground  that  the  attorneys  for  the  defendant  were 
absent  by  alleged  unavoidable  delay  in  consequence  of  be- 
ing engaged  in  the  trial  of  two  causes  in  Birmingham,  one 
in  the  Federal  and  the  other  in  the  city  court  in  that  city.*  * 

The  law  firm  employed  by  defendant  to  defend  its  suit, 
consisted  of  three  members,  all  residing  in  Birmingham. 
The  case  was  orginally  set  for  trial  on  October  26,  1897, 
but  by  an  agreement  of  counsel  on  both  sides,  and  with  the 
consent  of  the  court,  it  was  reset  for  November  3,  follow- 
ing. The  attorneys  for  defendant  did  not  appear  at  De- 
catur on  the  last  day  named.  One  of  them  telegraphed  on 
the  2nd,  to  the  clerk  of  the  court  in  Decatur:  ''We  are  en- 
gaged in  United  States  Court.  Pretty  sure  can  be  in  De- 
catur Friday  or  Saturday;"  requesting  the  clerk  to  show 
the  message  to  Mr.  Brown,  attorney  for  plaintiff,  and  have 
case  passed  to  Friday  or  Saturday.  The  clerk  replied 
same  day,  that  Brown  was  not  there  and  judge  refused  to 
make  order  in  his  absence.  Brown  lived  in  Hartselle,  Ala. 
On  the  3d.,  the  same  attorney  telegraphed  to  Brown  in  De- 
catur :  ''If  case  reached  please  pass  until  tomorrow.  Our 
firm  engaged  in  city  and  United  States  courts.  If  I  cannot 
come  will  send  some  lawyer  in  my  place.  If  the  case  will 
not  be  reached  tomorrow,  wire  me  today."  To  this  Brown 
replied:  "Telegram  received  after  case  was  disposed  of 
this  forenoon.  Judgment  against  defendant  for  about 
$120."  Defendant's  attorney  then  telegraphed  to  Brown 
or  Judge  Speake,  expressing  surpi-ise  at  the  taking  of  the 
judgment  after  seeing  his  telegram,  and  stating  that  he 


Sec.  4]  New  Trials  665 

would  be  up  that  night  with  his  witnesses,  ready  to  try  the 
case,  and  requesting  Brown  to  keep  his  witnesses  there  or 
get  them  back,  if  they  had  gone.  To  this  Brown  replied: 
**  Witnesses  are  gone.  Heard  nothing  of  your  telegram  un- 
til my  client  and  witnesses  were  here  ready  and  demanding 
trial.  Big  damage  suit  against  Morgan  county  on  trial, 
which  will  last  several  days." 

It  is  not  shown  that  defendant's  counsel  attempted  to 
have  either  of  their  cases  in  the  city  or  Federal  court  laid 
over,  in  order  that  one  of  them  might  go  to  the  Decatur 
court  to  try  this  cause,  which  had  been  previously  set  by 
their  consent  on  the  3d  of  November.     Reasons  are  stated 
why  one  of  the  counsel  engaged  in  the  city  court  case  was 
needed  to  try  that  cause,  and  another  to  try  the  cause  in  the 
Federal  court,  but  no  facts  are  shown  why  it  was  neces- 
sary that  the  third  one  should  remain  in  Birmingham  on 
account  of  either  of  said  causes,  further  than  the  expression 
of  a  conclusion  that  it  was  necessary  for  him  to  do  so.     It  is 
not  shown  why  defendant's  counsel,  when  apprehensive  of  a 
conflict  in  the  trials  of  their  causes  in  Birmingham  and  at 
Decatur,  did  not  communicate  with  plaintiff  and  his  attor- 
ney. Brown,  both  of  whom  lived  at  Hartselle,  before  the 
latter  left  home  to  come  to  Decatur  to  try  said  cause,  and 
attempt  to  make  arrangements  for  the  postponement  of  this 
cause.     It  appears  they  presumed  it  would  be  done  as  a 
matter  of  courtesy,  and  they  delayed  timely  effort  to  effect 
such  an  arrangement.     The  attorney  of  defendant,  who  did 
the  correspondence  by  wire,  in  one  of  his  messages  to  plain- 
tiff's attorney,  stated  that  if  he  could  not  come  at  a  certain 
time,  if  the  case  was  laid  over  till  then,  he  would  send 
another  attorney  to  represent  him.     He  does  not  show,  that 
he  might  not  have  done  this  and  had  the  case  tried  when 
set.     It  also  appears,  there  were  other  capable  lawyers  liv- 
ing in  Decatur,  who  had  no  connection  with  this  case,  who, 
for  aught  appearing,  could  have  represented  defendant.     It 
was  the  duty  of  defendant  or  his  attorneys  to  have  made 
some  arrangement  for  the  trial  of  the  cause,  by  the  appear- 
ance of  one  of  them,  or  by  a  suitable  representative  for  the 
purpose,  and  not  to  have  depended  on  a  courtesy  to  be 
shown  them  by  opposing  counsel,  especially  when  it  woul  1 
have  been  at  considerable  expense  to  his  client  to  do  so. 
We  will  not  attempt  to  deal  with  the  question  of  courtesy 


666  Trial  Peactice  [Chap.  17 

between  opposing  counsel.  The  judge  who  tried  this  cause, 
sitting  as  a  fair  arbiter  in  the  premises,  with  all  the  facts 
before  him,  decided  that  it  was  not  his  duty  to  grant  a  new 
trial,  and  we  are  unable  to  hold  that  he  erred  in  so  doing. 
This  conclusion  is  fully  justified  by  previous  decisions  of 
this  court.— ^rocA;  v.  S.  S  N.  A.  RR.  Co.,  65  Ala.  79',Broda 
V.  Greemvald,  66  Ala.  538;  McLeod  v.  Shelby  Mfg.  d  Imp. 
Co.,  108  Ala.  81. 

Affirmed. 


HOSKINS  V.  HIGHT. 

Supreme  Court  of  Alabama.    1891, 
95  Alabama,  284. 
Stone,  C.  X*  *  * 

The  power  to  set  aside  verdicts  and  grant  new  trials  is 
inherent  in  our  courts  of  common-law  jurisdiction;  and  in 
the  exercise  of  this  power  the  court  is  called  upon  to  use  its 
equitable  discretion  to  prevent  a  palpable  and  material 
wrong.  As  said  by  Clopton,  J.,  in  Cobb  v.  Malone,  92  Ala. 
630,  ''The  power  is  essential  to  prevent  irreparable  injus- 
tice, in  cases  where  a  verdict  wholly  wrong  is  the  result  of 
inadvertence,  forgetfulness,  or  intentional  or  capricious 
disregard  of  the  testimony,  or  of  bias  or  prejudice,  on  the 
part  of  juries,  which  sometimes  occurs." 

When,  in  the  exercise  of  this  inherent  power,  the  trial 
court  grants  a  new  trial,  the  presumption  is  that  it  has 
rightfully  used  its  discretion ;  but,  if  the  contrary  appears, 
and  it  is  plainly  shown  that  the  trial  court  has  a4:)used  its 
power,  this  discretion,  being  judicial  in  its  character,  should 
be  revised  on  appeal. — Edsall  v.  Ayres,  15  Ind.  286;  Lloyd 
V.  McClure,  2  Greene  (Iowa),  139;  Frieley  v.  David,  7  Iowa, 
3. 

The  grounds  upon  which  a  new  trial  may  be  granted  are 
as  varied  as  the  circumstances  of  each  individual  case.  In 
the  exercise  of  a  sound  discretion,  the  court  must  consider 
the  particular  surroundings,  and  have  special  regard  to  the 


Sec.  4]  New  Tkials  667 

(Mjuitable  demands  of  each  s-aparate  case.  But  text-writers 
and  different  courts  recognize  many  different  grounds  for 
the  granting  of  new  trials.  Surprise  and  mistake  are 
placed  in  this  category;  and  there  are  many  instances 
where  new  trials  have  been  granted,  because  one  party  to 
a  suit  has  been  taken  by  surprise,  or  has  been  prejudiced,  on 
account  of  a  mistake  or  inadvertence  for  which  he  was  not 
responsible,  and  which  was  not  occasioned  in  any  way  by 
his  negligence.  No  doubt  it  was  intended  that  the  ground 
upon  which  the  new  trial  in  this  case  was  asked  and  granted 
should  receive  its  force  and  efficacy  from  this  division  of 
the  causes  that  justify  such  equitable  interposition  by  the 
court.  We  shall  so  consider  it ;  for  the  ground  as  stated  in 
the  motion  is,  that  the  defendant  "was  prevented  from 
making  his  defense  thereto  by  accident  or  mistake,  and 
without  fault  on  his  part. ' ' 

In  order  to  obtain  a  new  trial  on  the  ground  of  mistake 
and  surprise,  there  are  certain  requirements  which  must  be 
fulfilled  as  conditions  precedent  to  the  exercise  by  the 
trial  court  of  this  discretion.  It  must  be  shown  that  the 
surprise  or  mistake  occurred  in  reference  to  some  matter 
material  to  the  issue  involved;  that  injury  resulted  there- 
from and  that  the  party  asking  for  a  new  trial  has  not  been 
guilty  of  negligence  or  fault  in  the  premises. — Beadle  v. 
Graham,  m  Ala.  102;  Brooks  v.  Douglass,  32  Cal.  208; 
Jackson  v.  Worford,  7  Wend.  62 ;  Huber  v.  Lane,  45  Miss. 
608;  Walker  v.  Kretsinger,  48  111.  502;  Fretivell  v.  Lajfoon, 
77  Mo.  26 ;  16  Amer.  &  Eng.  Encyc.  Law,  p.  532. 

The  first  duty  of  a  party  surprised  at  the  trial,  or  upon 
the  discovery  of  a  mistake  that  will  prejudice  his  interest, 
is  to  take  proper  legal  steps  to  continue  or  delay  the  cause; 
for  "he  can  not  neglect  this  in  the  hope  of  securing  a  ver- 
dict in  spite  of  the  surprise  (or  mistake),  and  then  obtain  a 
new  trial."  In  the  case  of  Shipp  v.  Siiggett,  9  B.  Monroe 
(Ky.)  5,  the  court  observed;  "The  correct  practice  in  such 
case  is  for  the  party  at  once,  upon  the  discovery  of  the  cause, 
during  the  progress  of  the  trial,  which  operates  as  a  sur- 
prise on  him,  to  move  a  continuance  or  postponement  of 
the  trial,  and  not  attempt  to  avail  himself  of  the  chance 
of  obtaining  a  verdict  on  the  evidence  he  has  been  able  to 
introduce,  and  if  ho  should  fail,  tlien  to  apply  for  a  new 
trial  on  the  ground  of  surprise.     To  tolerate  such  a  prac- 


668  Tkial  Practice    '  [Chap.  17 

tice  would  have  the  effect  of  giving  to  the  party  surprised 
an  unreasonable  and  unfair  advantage,  and  tend  to  an  un- 
necessary and  improper  consumption  of  the  time  of  the 
court."  We  approve  this  language,  and  announce  the  rule, 
that  before  a  party  can  be  granted  a  new  trial  on  the 
ground  of  surprise  and  mistake,  which  was  known  or  dis- 
covered before  or  during  the  trial,  he  must  first  move  for  a 
continuance,  or  take  such  legal  steps  to  postpone  the  trial 
of  the  cause  as  the  circumstances  of  the  particular  case  may 
require.  Washer  v.  White,  16  Ind.  136;  Young  v.  Com.,  4 
Gratt.  550;  Gee  v.  Moss,  69  Iowa,  709;  Wells  v.  Sanger,  21 
Mo.  354;  Rogers  v.  Bine,  1  Cal.  429;  Bell  v.  Gardner,  71 
111.  319 ;  Boyle  v.  Sterga,  38  Cal.  459 ;  Beivey  v.  Frank,  62 
Cal.  343;  16  Am.  &  Eng.  Encyc.  of  Law,  p.  533.  This  mo- 
tion for  a  continuance,  or  effort  to  postpone  the  trial,  is 
affirmative  matter,  and  should  therefore,  appear  of  record. 
In  its  absence,  this  court  can  not  presume  such  motion  or 
effort  was  made;  and  the  cause  must  be  considered  in  the 
light  of  such  facts  and  matters  of  record  as  appear  in  the 
transcript.  This  conclusion  is  decisive  of  the  only  ques- 
tion presented  by  this  appeal,  for  no  motion  for  a  continu- 
ance, nor  any  effort  to  postpone  the  trial,  was  made  when 
the  absence  of  the  important  witnesses  was  discovered.  The 
trial  court  should  not  have  granted  the  motion  for  a  new 
trial,  under  the  circumstances  shown  in  the  record. 

We  could  rest  our  opinion  here ;  but,  considering  that  this 
phase  of  the  question  has  never  before  been  presented  to 
us  for  review,  we  deem  is  best  to  decide  the  correctness 
of  the  lower  court's  ruling  in  granting  a  new  trial  upon  the 
ground  stated  in  the  opinion,  and  the  evidence  produced  to 
substantiate  such  ground. 

The  accident  or  mistake  that  prevented  the  defendant 
from  making  his  defense,  was  the  absence  of  certain  wit- 
nesses, whose  names  he  had  given  to  his  counsel  to  have 
summoned.  These  witnesses  were  never  subpoenaed,  and 
this  is,  no  doubt,  at  least  one  of  the  reasons  they  were  ab- 
sent. These  witnesses  were  not  subpoenaed  by  reason  of 
the  mistake  or  negligence  of  the  defendant  or  his  counsel, 
have  the  clerk  of  the  court  subpoena  the  witnesses.  The 
clerk  had  no  recollection  of  any  such  direction,  and  never 
whose  recollection  was  that  counsel  directed  his  clerk  to 


Sec.  4]  New  Trials  669 

instructed  the  clerk  of  the  court  to  subpoena  the  said  wit- 
nesses. 

While  it  is  true  that  a  new  trial  may  be  granted  to  a 
party  who  was  deprived  of  the  benefit  of  the  evidence  of  a 
witness  who  was  excusably  absent,  and  whose  testimony 
would  have  probably  affected  the  result,  yet,  in  order  to 
claim  the  benefit  of  a  new  trial  on  this  ground,  it  must,  as 
a  general  rule,  be  shown  that  the  witnesses  had  been  reg- 
ularly summoned  and  that  their  absence  was  not  caused 
through  the  negligence  of  the  party  asking  for  a  new  trial 
As  said  in  16  Amer.  &  Eng.  Encyc.  of  Law,  541,  ''It  is  a 
general  rule,  that  a  new  trial  should  not  be  granted  on  ac- 
count of  the  absence  of  witnesses,  when  a  continuance  has 
not  been  asked  for,  or  the  absence  of  the  witnesses  is  caused 
by  any  form  of  neglect  by  the  party  applying  for  a  new 
triaV—Huhland  v.  Sedgwick,  17  Cal.  123;  Tilden  v.  Gardi- 
ner, 25  Wend.  (N.  Y.)  663;  Love  v.  Breedlove,  75  Tex.  649; 
Gee  V.  Moss,  68  Iowa,  318;  Young  v.  Com.,  4  Gratt.  (Va.) 
550;  Wells  V.  Sanger,  21  Mo.  354;  Rogers  v.  Hine,  1  Cal. 
429. 

The  result  is  the  same,  whether  the  absence  of  the  wit- 
nesses was  caused  by  the  mistake  or  negligence  of  the  party 
or  of  his  attorney.  "The  mistake  or  negligence  of  the  at- 
torney appearing  for  the  party  to  a  suit  is  the  mistake  or 
negligence  of  the  party;  and  no  new  trial  will  be  allowed 
where  such  mistake  arises  from  negligence  or  lack  of  skill." 
—Handy  v.  Davis,  38  N.  H.  411 ;  Heath  v.  Marshall,  46  N. 
H.  40.  The  failure  to  make  defense  to  a  suit,  by  reason  of 
a  mistake  of  the  defendant  or  his  counsel,  caused  by  negli- 
gence, can  not  justify  the  granting  of  a  new  trial,  it  matters 
not  how  effective  or  just  the  defense  may  be. — 16  Amer.  & 
Eng.  Encyc.  of  Law,  549,  n.  4. 

Under  the  principle  above  announced,  the  judgment  of  tho 
City  Court  granting  a  new  trial  is  reversed,  and  a  judgment 
is  here  rendered  overruling  the  defendant's  motion  for  a 
new  trial. 

Reversed  and  rendered. 


670  Tkial  Pbactice  [Chap.  1. 

GOTZIAN  V.  McCOLLUM. 

Supreme  Court  of  South  Dakota.    1896. 

8  South  Dakota,  186. 

Fuller,  J.  Based  upon  a  claim  of  ownership,  this  ac- 
tion was  against  a  sheriff,  to  recover  the  value  of  a  stock 
of  boots  and  shoes  seized  and  sold  under  an  execution  is- 
sued upon  a  judgment  in  favor  of  the  Norwegian  Plow 
Company,  against  Asa  Covell  and  another;  and  the  appeal 
is  from  an  order  setting  aside  a  verdict  and  granting  the 
defendant  a  new  trial.  At  the  trial  and  after  plaintiff  and 
appellant  had  made  a  prima  facie  case  and  rested,  and  in 
support  of  that  part  of  the  answer  in  which  it  is  alleged 
that  Asa  Covell,  the  judgment  debtor,  was  in  fact  the 
owner  of  the  property  in  controversy,  said  Covell  was  called 
on  the  part  of  the  defendant  and  respondent,  and  testified 
that  he  was  not  the  owner  thereof,  but  that  said  property 
belonged  to  C.  Gotzian  &  Co.  when  the  same  was  seized  and 
sold  on  execution.  At  this  stage  in  the  i3roceedings  an  ap- 
plication for  a  continuance  was  made  by  resj^ondent's  coun- 
sel, based  upon  the  ground  of  surprise  in  the  testimony  of 
the  witness  Covell.  *  *  *  From  counsel's  affidavit  for  a  con- 
tinuance, upon  which  this  verdict  was  set  aside  and  a  new 
trial  was  ordered,  it  appears  that  said  Asa  Covell,  whom 
defendant  had  called  as  a  witness,  at  all  times  claimed  the 
property,  and  had  recently  made  certain  affidavits  in  which 
he  had  stated  specifically,  upon  oath,  that  he  was  at  the 
time  of  the  seizure  thereof  the  owner  of  all  the  property 
described  in  the  complaint  herein,  and  that  relying  upon 
said  witness,  and  believing  that  he  would  testify  upon  the 
trial  that  he  was  the  owner  of  the  property  at  the  time  the 
same  was  seized  and  sold  by  the  sheriff  in  satisfaction  of 
said  judgment  against  liim,  and  regarding  such  direct  and 
solemn  declarations  as  sufficient  assurance  that  he  would 
again  so  testify,  counsel  had  deemed  it  unnecessary  to  call 
and  produce  at  the  trial  certain  other  accessible  witnesses 
named  in  his  affiflavit,  a^ir!  bv  whom  he  would  if  a  continu- 
ance were  granted,  be  able  to  prove  certain  specified  facts, 
tending  to  show  that  said  (V)V(>11,  tlic  judgment  debtor,  and 
not  C.  Gotzian  &  Co.,  owned  the  entire  stock  of  boots  and 


Sec.  4]  New  Tkials  671 

shoes  at  the  time  the  same  was  seized  and  sold  at  execution 
sale  by  the  defendant  sheriff. 

Upon  the  hearing  of  the  motion  for  a  new  trial,  respond- 
ent relied  wholly  upon  his  affidavit  for  a  continuance ;  and, 
in  opposition  thereto,  appellant  submitted  affidavits  to  dis- 
prove the  recitals  thereof  concerning  facts  to  which  certain 
witnesses  would  testify,  if  present,  and  tending  to  rebut 
statements  contained  in  said  affidavit  relating  to  the  ques- 
tion of  good  faith,  ordinary  prudence,  surprise,  and  the 
exercise  of  diligence  to  prevent  the  same.  If,  in  the  exer- 
cise of  a  sound  judicial  discretion,  the  court,  upon  the  show- 
ing made  ought  to  have  granted  a  continuance,  it  was  en- 
tirely proper,  upon  the  same  showing,  to  correct  the  error 
by  awarding  a  new  trial.  Both  rulings  being  within  the 
exercise  of  a  judicial  discretion,  neither  would  be  reviewed 
on  appeal,  in  the  absence  of  an  abuse  thereof.  From  a 
knowledge  of  the  nature  of  his  previous  statements  under 
oath,  respondent's  counsel  were  justified  in  presuming  that 
the  witness  Covell  would  testify  at  the  trial  that  he  was  the 
owner  of  the  property,  and  they  were  reasonably  justified  in 
omitting  to  subpoena  other  witnesses  in  possession  of  facts 
relating  to  the  question  of  ownership.  Obviously,  the  wit- 
ness would  not  have  been  called  upon  by  counsel  for  re- 
spondent to  testify  in  support  of  the  one  vital  issue  tend- 
ered by  the  complaint  of  appellant,  and  traversed  by  the 
answer;  and,  when  he  did  so,  it  is  equally  clear  that  re- 
spondent, at  least,  was  surprised.  That  there  are  many 
witnesses  who  unconsciously  or  designedly  make  statements 
in  private  consultation,  before  the  trial,  more  probative, 
direct,  and  certain  than  ever  reach  the  ear  of  the  court  and 
jury  from  the  lips  of  the  witness  when  under  the  solemnity 
of  an  oath,  is  a  fact  well  known  to  every  law^s^er;  but  where, 
as  in  this  instance,  a  witness  has  positively  and  deliberately 
sworn  upon  two  or  three  recent  occasions  that  he  was  at 
all  times  the  owner  of  the  identical  property  in  dispute,  and, 
when  called  as  a  witness  for  the  sole  purpose  of  establishing 
such  fact,  not  only  testifies  that  he  did  not  own  said  prop- 
erty, or  any  part  thereof,  but  that  the  same  belonged  to  a 
claimant  against  whom  he  was  called  as  a  witness,  a  dif- 
ferent, and,  we  trust,  a  far  more  unusual,  case  is  presented. 
To  allow  a  case  to  be  continued,  so  near  the  close  of  a  long 
jury  trial,  would  necessitate  the  trouble  and  expense  of 


672  Tkial  Practice  [Chap.  17 

a  retrial,  in  any  event;  and,  in  the  face  of  this  fact,  the 
court  evidently  denied  the  application  without  serious  re- 
flection, and  with  the  intention  at  the  time  to  correct  the 
error,  if  any  was  made,  by  granting  a  new  trial,  when  ap- 
plied for,  in  case  it  should  be  found  that  substantial  injury 
had  resulted  therefrom.  Upon  the  entire  record,  we  think 
the  trial  court  was  justified  in  concluding  that  reasonable 
care  and  diligence  had  been  used  to  procure  testimony  on 
the  part  of  the  defense,  and  that,  notwithstanding  the  sur- 
prise, ordinary  prudence  had  been  exercised  by  the  attor- 
neys for  respondent  in  preparing  for  trial,  and  that  the  in- 
jury resulting  from  their  disappointment  in  the  testimony 
of  the  witness  Covell  might  be  remedied  by  another  trial 
of  the  cause.  An  application  for  a  continuance  or  for  a 
new  trial  on  the  ground  of  surprise  being  addressed  to  the 
sound  discretion  of  the  trial  court,  the  exercise  thereof  will 
be  reviewed  only  in  cases  where  there  is  manifestly  an 
abuse  of  such  discretion ;  and  a  stronger  case  must  be  made 
to  justify  a  reversal  on  appeal  when  a  continuance  or  a 
new  trial  has  been  granted  that  when  such  application  has 
been  refused.  Alt  v.  Raihvay  Co.  (S.  D.),  57  N.  W.  1126. 
The  order  from  which  this  appeal  was  taken  is  therefore 
affirmed. 


HILL  V.  McKAT. 

Supreme  Court  of  Montana.    1908. 
36  Montana,  440. 

Mr.  Chief  Justice  Brantly  delivered  the  opinion  of  the 
court. 

This  action  was  brought  to  obtain  a  decree  adjudicating 
the  respective  rights  of  the  parties  plaintiff  and  defend- 
ant against  each  other  and  among  themselves,  to  the  use 
of  the  waters  flowing  in  Indian  creek,  a  tributary  of  Ruby 
river,  in  Madison  county.  *  *  * 

The  defendant  McKay  (appellant)  is  the  owner  of  cer- 
tain lands  situated  on  Mill  creek,  another  tributary  of 
]{uby  river.    He  also  owns  a  flouring-mill,  situated  on  the 


Sec.  4]  New  Trials  673 

sHme  stream,  which  is  propelled  by  waterpower.  It  seems 
that  the  water  diverted  by  him  through  his  mill  ditch,  and 
for  the  irrigation  of  his  lands  in  Mill  Creek,  does  not, 
after  its  release,  return  to  Indian  creek,  but  flows  into  the 
channel  of  Mill  creek.  The  issue  at  the  trial,  so  far  as 
appellant  is  concerned,  was  whether  the  right  asserted  by 
him  through  his  mill  ditch  was  superior  to  the  rights  of 
the  other  claimants  during  the  season  of  the  year  when 
irrigation  was  necessary  for  farm  purposes,  or  whether 
it  was  available  only  during  the  other  portions  of  the 
year. 

The  appellant  claims  as  the  successor  in  interest  of  one 
Hall,  now  dead,  who,  with  others,  built  the  mill  and  con- 
structed the  ditch  in  1866.  The  court  found  that  ''it  was 
the  intention  of  those  who  built  the  mill  ditch  and  appro- 
priated the  waters  of  Indian  creek  thereby  to  use  the  wa- 
ters for  mill  and  power  purposes  when  the  waters  in  In- 
dian creek  were  not  needed  for  irrigation  purposes."  It 
was  accordingly  adjudged  that  the  defendant's  use  must 
be  confined  to  the  autumn,  winter  and  early  spring  months, 
when  the  "waters  of  Indian  creek  are  not  required  for  the 
proper  irrigation  of  lands."  This  defendant  has  appealed 
from  an  order  denying  his  motion  for  a  new  trial.  The 
ground  of  his  motion  was  surprise,  in  that  two  witnesses, 
introduced  by  him  to  establish  his  right,  made  statements 
at  the  trial  directly  contrary  to  what  they  had  induced 
him  to  believe  they  would  make  when  he  had  interviewed 
them  to  ascertain  what  their  testimony  would  be  touching 
his  right.  His  affida\4t  in  support  of  the  motion  states, 
in  substance,  that  he  was  charged  by  his  counsel  with  the 
duty  of  finding  and  producing  witnesses  in  support  of  his 
water-right  through  his  mill  ditch;  that  in  performance 
of  this  duty  he  questioned  witnesses  John  Hatfield  and 
William  Ferm  as  to  the  use  of  the  water  in  the  mill  during 
the  time  Hall  was  one  of  the  owners  of  it;  that  he  ques- 
tioned them  fully,  but  neither  of  them  disclosed  to  him  any 
fact  or  information  tending  to  impair  the  superiority  of 
his  right  during  Hall's  ownership,  or  tending  to  show  that 
Hall  ever  recognized  any  right  in  Indian  creek  superior  to 
the  mill  ditch  right;  that,  on  the  contrary,  Hatfield,  when 
questioned  by  affiant  as  to  the  conduct  of  Hall  when  the 
farmer?,  ^hithout  his  consent  diverted  the  water  from  the 
T.  p.— 48 


674  Trial  Peactice  [Chap.  17 

mill  ditch,  told  him  that  Hall  ''went  and  took  it,"  meaning 
and  intending  that  affiant  should  understand  thereby  that 
jTatfield  would  testify  that  under  such  circumstances  Hall 
reclaimed  the  water,  thus  asserting  the  superior  right  of 
the  mill  ditch;  that,  relying  upon  the  information  so  given 
him  by  Hatfield  and  Ferm,  and  believing  that  they  had 
fully  stated  the  facts  to  which  they  would  testify,  affiant 
called  them  to  testify  in  his  behalf,  and  took  no  steps  to 
secure  testimony  from  other  witnesses  to  establish  the 
facts ;  that  Hatfield  testified  upon  the  trial  directly  contra- 
ry to  what  he  had  informed  affiant  prior  to  the  trial,  by 
saying  that  Hall  had  an  understanding  with  the  farmers 
below  the  head  of  his  ditch  that  when  they  wanted  the 
water  they  could  take  it  and  shut  the  mill  down;  that  the 
farmers  took  the  water  whether  it  was  needed  for  the  mill 
or  not ;  that  this  arrangement  was  the  result  of  a  bargain, 
made  about  the  year  1866  with  one  Bateman  and  sundry 
other  persons;  that  William  Ferm  testified  that  Hall  had 
obtained  permission  from  certain  unnamed  persons  to 
build  the  mill  ditch,  with  the  understanding  that  when  they 
needed  the  water  it  was  to  be  returned  to  them ;  that  Ferm, 
being  called  by  plaintiffs  as  their  own  witness  in  rebuttal, 
testified  positively  that  Hall  had  told  the  witness  that  he 
used  the  water  from  Indian  creek  with  the  consent  of  the 
people  living  along  the  stream  below;  that  both  these  wit- 
nesses constantly  associated  with  the  plaintiffs  and  their 
witnesses;  and,  upon  information  and  belief,  he  charges 
that  their  testimony  at  the  trial  was  the  result  of  collusion 
with  plaintiffs.  It  is  further  alleged  that  if  a  new  trial 
should  be  granted,  the  appellant  can  produce  six  witnesses, 
naming  them,  whose  testimony  will  show  that  Ilall,  his 
])redecessor,  always  possessed  and  asserted  the  right  to 
the  use  of  the  mill  ditch,  to  the  exclusion  of  all  other  rights 
below  the  mouth  of  that  ditch.  The  affidavits  of  these  wit- 
nesses were  also  used  in  support  of  the  motion,  and,  gen- 
erally, support  the  Hall  right,  as  claimed  by  the  appellant. 
The  plaintiffs  filed  no  counter-affidavits,  and  hence  the 
statements  of  the  appellant,  so  far  as  they  are  statements 
of  fact,  are  not  controverted. 

Do  the  facts  stated  make  out  a  case  upon  which  the  court 
should  in  its  discretion,  have  granted  a  new  trial?  *  *  * 

Coming,  now,  to  the  merits  of  the  motion,  it  is  the  gen- 


Sec.  4]  New  Trials  675 

eral  rule  that  a  new  trial  will  be  granted  on  the  ground  of 
surprise  only  when  it  is  clearly  shown  that  the  movant  was 
actually  surprised,  that  the  facts  from  which  the  surprise- 
resulted  had  a  material  bearing  on  the  case,  that  the  verdict 
or  decision  resulted  mainly  from  these  facts,  that  the  al- 
leged condition  is  not  the  result  of  movants  own  inattention 
or  negligence,  that  he  has  acted  promptly  and  claimed  re- 
lief at  the  earliest  opportunity,  that  he  has  used  every 
means  reasonably  available  at  the  time  of  the  surprise  to 
remedy  the  disaster,  and  that  the  result  of  a  new  trial  will 
jDrobably  be  different,  {O'Donnell  v.  Bennett,  12  Mont.  242, 
29  Pac.  1044;  Schellhous  v.  Ball,  29  Cal.  605;  Doijle  v. 
Sturla,  38  Cal.  456;  Chicago  &  Great  Eastern  Ry.  Co.  v. 
Voshurgli,  45  111.  311;  Hull  v.  Minneapolis  St.  Ry.  Co.,  64 
Minn.  402,  67  N.  W.  218;  1  Spelling  on  New  Trial  and  Ap- 
pellate Practice,  sec.  201 ;  14  Encyclopedia  of  Pleading  and 
Practice,  723.)  If,  at  the  time  the  condition  arises,  the 
party  can  make  use  of  other  evidence  at  hand  or  can  avoid 
the  threatened  disaster  by  securing  a  continuance,  or  by 
submitting  to  a  nonsuit,  he  must  do  so ;  and  not  only  so,  but, 
after  these  means  have  failed,  he  must  by  his  showing  make 
it  clear  that  his  allegation  is  not  a  mere  pretense  to  cover 
his  own  lack  of  diligence.  As  was  said  in  Schellhous  v. 
Ball,  supra;  ''It  is  the  duty  of  the  courts  to  look  upon  appli- 
cations for  new  trials  upon  the  ground  of  surprise  with  sus- 
picion, for  the  reason  that  from  the  nature  of  the  case 
surprise  may  be  often  feigned  and  pretended,  and  the  op- 
posite party  may  be  unable  to  show  that  such  is  the  case. 
Hence,  the  party  alleging  surprise  should  be  required  to 
show  it  conclusively,  and  by  the  most  satisfactory  evidence 
within  his  reach."  In  Chicago  S  Great  Eastern  Ry.  Co.  v. 
Voshurgh,  supra,  the  court  said:  ''In  applications  for  new 
trials  on  such  ground  it  is  not  only  necessary  that  the  party 
should  have  been  surprised,  but  that  it  was  in  a  matter 
material  to  the  issue,  and  that  it  produced  injury  to  the 
party ;  that  it  was  not  the  consequence  of  neglect  or  inatten- 
tion on  the  part  of  the  party  surprised;  also,  that  he  used 
all  reasonable  efforts  to  overcome  the  evidence  which 
worked  the  surprise,  or  that  it  was  not  within  his  power  to 
have  done  so  by  the  employment  of  reasonable  diligence." 

Applying  this  rule  to  the  appellant's  affidavit,  we  find 
that  it  is  insufficient  in  several  particulars.    It  does  not  ap- 


676  Trial  Practice  [Chap.  17 

pear  therefrom,  except  by  way  of  conclusion  of  the  affiant, 
what  inquiry  appellant  made  of  the  witnesses  whoso  con- 
duct is  complained  of;  nor  does  it  appear,  except  in  thy 
same  way,  what  they  told  him  they  would  testify  to.  Ex- 
cept the  statement  of  Hatfield  that  Hall  said  he  "went 
and  took  it,"  referring  to  the  water,  we  have  but  the  con- 
clusion of  the  appellant  as  to  what  the  purport  of  the 
statements  to  him  by  the  witnesses  were.  They  may  have 
had  the  purport  and  evidentiary  value  assigned  to  them  by 
the  appellant,  but  that  this  is  true  we  cannot  say,  because 
the  details  of  them  are  not  before  us.  The  evidence  heard 
by  the  trial  court  is  not  before  us.  Therefore,  we  cannot 
say,  except  from  the  statements  in  the  affidavit,  that  the 
court  based  its  findings  as  to  the  mill  ditch  mainly  upon 
their  testimony.  So  far  as  we  know,  there  may  have  been 
other  evidence  in  the  case,  and  sufficient  to  justify  the  find- 
ing, even  if  the  witnesses  had  testified  as  appellant  sup- 
posed they  would.  For,  while  we  may  infer  from  the  affi- 
davit that  they  were  the  only  witnesses  called  by  appellant, 
there  is  no  positive  statement  that  such  was  the  case,  or 
that  they  were  the  only  witnesses  who  testified  as  to  the 
mill  ditch.  From  the  affidavit,  as  a  whole,  coupled  with  the 
fact  that  many  other  witnesses  were  found  after  the  trial 
was  over  who  could  furnish  the  desired  evidence,  we  think 
the  inference  permissible  that  the  appellant  was  negligent 
in  the  search  for  evidence  to  sustain  his  contention  prior 
to  the  trial,  and  that  the  judge  who  decided  the  motion 
thought  so. 

There  is  a  total  want  of  any  showing  of  prompt  action 
and  diligence  on  the  part  of  the  appellant  in  his  effort  to 
avoid  the  result  of  his  alleged  surprise  at  the  testimony, 
when  it  came  out.  He  made  no  application  for  a  continu- 
ance. He  did  not  call  the  attention  of  counsel  to  the  mat- 
ter;  nor  was  it  called  to  the  attention  of  the  court.  It  does 
not  appear  that  he  did  not  have  other  evidence  at  hand  or 
within  reach  which  would  have  been  available.  In  fact,  so 
far  as  we  can  judge,  he  sat  silent  during  the  trial,  and, 
though  the  cause  was  tried  by  the  court  sitting  without  a 
jury,  and  it  was  held  under  advisement  from  June  4th,  the 
date  of  the  trial,  until  August  30th,  the  appellant  made  no 
application  to  have  the  cause  reopened,  but  still  remained 
silent,  thinking  no  doubt,  that  the  result  would  be  satis- 


Sec.  4.]  New  Trials  ^  677 

factory.  Evidently  the  surprise  upon  which  he  relies  is  the 
surprise  at  the  result,  rather  than  at  anything  that  oc- 
curred during  the  trial. 

A  consideration,  which  is  conclusive,  however,  is  that  it 
is  not  at  all  apparent  that  there  is  any  probability  that 
the  result  reached  by  the  trial  judge  would  be  different  if  a 
new  trial  were  granted.  As  stated  above,  the  evidence 
is  not  before  us,  and  though  it  may  be  conceded  that  the 
new  witnesses  whose  affiidavits  are  embodied  in  the  record 
would  testify  as  they  allege,  in  the  absence  of  the  evi- 
dence, we  cannot  say  that  a  different  result  would  pro- 
bably be  reached. 

We  are  of  the  opinion  that  no  abuse  of  discretion  is 
shown,  and  that  the  order  denying  a  new  trial  should 
be  affirmed.    It  is  so  ordered. 

A  firmed. 

Mr.  Justice  Holloway  and  Me.  Justice  Smith  concur. 


NELLUMS  V.  NASHVILLE. 

Supreme  Court  of  Tennessee.    1901. 

106  Tenessee,  222. 

Wilkes,  J.  This  is  an  action  against  the  Mayor  and  City 
Council  of  Nashville  for  damages,  for  personal  injuries, 
sustained  by  Mrs.  Nellums  on  account  of  a  defective  plank 
walk  upon  what  is  called  in  the  record  Belleville  street. 
There  was  a  trial  before  a  jury  in  the  Court  below  and  ver- 
dict and  judgment  for  the  city,  and  the  plaintiff  has  ap- 
pealed and  assigned  errors. 

The  first  error  assigned  is  that  the  Court  below  should 
have  granted  a  new  trial  upon  the  ground  of  surprise  and 
newly  discovered  evidence.  In  support  of  this  assignment 
plaintiff  states  that  the  city  did  not  disclose  its  real  de- 
fense until  its  last  witness,  Pat  Cleary,  was  examined. 
This  witness,  in  substance,  stated  that  the  city  of  Nash- 
ville had  never  done  any  work  on  the  west  side  of  Relle- 
ville  Street,  nor  had  it  in  any  other  manner  accepted  the 


678  Teial  Pkactice  [Cliap.  17 

V 

same  as  a  street  since  it  was  included  within  tlie  corporate 
limits  of  the  city  in  1890. 

The  insistence  is,  that  this  was  great  surprise  to  the 
plaintiff,  inasmuch  as  the  fact  of  nonuser  and  nonaccept- 
ance  was  not  specially  pleaded,  and  the  street  had  been 
used  by  the  public,  and  was  in  a  thickly  settled  part  of 
the  city,  and  had  been  recognized  as  a  street  by  the  public 
in  numerous  ways,  and  at  many  times,  after  it  was  taken 
into  the  city  and  prior  to  the  accident. 

The  affidavit  upon  which  the  application  for  a  new  trial 
is  based  states  this  feature  of  surprise,  and  adds  that 
plaintiff  will  make  proof  of  user  and  many  other  facts 
showing  acceptance  on  the  part  of  the  city,  and  it  is  sup- 
ported, as  to  the  latter  feature,  by  the  sworn  statements  of 
quite  a  number  of  witnesses. 

The  city  filed  only  one  plea,  that  of  not  guilty,  and  upon 
this  the  plaintiff  took  issue. 

Under  the  plea,  and  upon  this  issue,  we  think  it  clear 
that  the  city  might  show  by  evidence  that  it  had  never 
accepted  that  portion  of  the  street  where  the  accident  oc- 
curred. *  *  *  This  being  true,  the  plaintiff  was  bound  to 
take  notice  of  every  defense  that  could  be  legally  advanced 
under  the  plea  of  the  general  issue.  Conceding  the  pro- 
position to  be  correct  that  the  evidence  was  within  the 
issues  presented  by  the  pleadings,  surprise  cannot  be  pre- 
dicated upon  the  fact  that  evidence  was  not  anticipated 
along  any  line  embraced  within  the  pleadings.  The  doctrine 
is  thus  laid  down  in  Vol.  16,  page  544  (old  Ed.)  Am.  & 
Eng.  Ency.  Law. 

"The  fact  that  an  adversary's  evidence  is  different  from 
what  it  was  supposed  it  would  be,  is  not  sufficient.  If 
there  has  been  any  want  of  diligence  in  ascertaining  what 
the  testimony  of  a  witness  would  be,  a  new  trial  will  be 
refused."  In  15  Ency.  Pleading  &  Practice,  733,  it  is 
said:  "A  party  is  bound  to  come  prepared  to  meet  the 
case  made  by  his  adversary,  and  he  cannot  plead  surprise 
at  material  and  relevant  testimony."  In  support  of  this 
proposition  are  cited  Cole  v.  Fall  Brook  Coal  Co.,  10  N.  Y. 
447;  Knapp  v.  Fisher,  49  Ver.  94;  Davis  v.  Buggler,  2 
Chand.  (Wis.),  152;  Bragg  v.  Moberhj  17  Mo.  App.  221; 


Sec.  5]  New  Teials  679 

McNeally  v.  Stroud,  22  Tex.  229;  Anderson  v.  Duffield,  8 
Tex.  237,  and  a  number  of  other  cases. 

We  do  not  find  any  reversible  error  in  the  action  and 
judgment  of  the  Court  below,  and  it  is  affirmed  with  costs. 


Section  5.    Verdict  Contrary  to  Evidence. 

SERLES  V.  SERLES. 

Supreme  Court  of  Oregon.     1899. 

35   Oregon,  289. 

This  is  an  action  by  W.  L.  Series  against  Clara  Series, 
S.  C.  Zuber,  and  John  Hough,  to  recover  damages  for  tres- 
pass in  detaching  and  removing  a  dwelling  house  from  the 
realty  of  the  plaintiff.  The  verdict  of  the  jury  was  for 
plaintiff  in  the  sum  of  $400,  and  against  the  defendants 
Series  and  Zuber,  ind  judgment  having  been  entered 
thereon,  they  appeal  *  *  *  After  the  rendition  of  the 
verdict,  the  defendants  interposed  a  motion  to  set  it  aside, 
and  for  a  new  trial,  based  upon  several  grounds:  First, 
tliat  of  newly  discovered  evidence ;  Second,  excessive  dam- 
ages; and,  Third,  that  tlie  evidence  was  insufficient  to  war- 
rant the  verdict, — that  the  verdict  is  against  the  evidence, 
is  not  justified  thereby,  and  is  contrary  to  law.  This  mo- 
tion was  overruled,  the  court  saying:  ''Tlie  question  of 
whether  the  verdict  is  a  proper  one  upon  the  evidence  is 
not  now  involved,  only  to  the  extent  as  to  whether  there 
was  any  evidence  to  support  it,  and  there  is  no  doubt  that 
there  was,  and  the  court  cannot  review  their  decision  up- 
on the  preponderance  of  the  evidence." 

Reversed. 

Mr.  Chief  Justice  Wolverton,  after  stating  the  facts, 
delivered  the  opinion  of  the  court. 

2.  It  is  strenuously  urged,  however,  that  the  court  be- 
low decided  the  motion  for  a  new  trial  upon  an  erroneous 
principle  of  law,  in  this :    That  it  was  governed,  as  is  shown 


680  Tkial  Peactice  [Chap.  IT 

by  its  written  opinion,  by  the  idea  that,  if  there  was  any 
evidence  in  the  record  to  support  the  verdict,  it  was  with- 
out power  to  disturb  the  same  or  set  it  aside;  whereas,  it 
is  insisted  that  it  is  the  duty  of  the  court,  in  the  considera- 
tion of  the  motion  for  a  new  trial,  based  upon  the  insuffi- 
ciency of  the  evidence,  to  weigh  all  the  evidence  submitted 
to  the,  jury,  and  if,  upon  the  whole  case,  the  verdict  appears 
to  be  against  the  weight  of  evidence  and  is  manifestly  un- 
just, to  allow  the  motion.     The  trial  judge  seems  to  have 
assimilated  the  ground  for  granting  a  new  trial  to  that 
which  is  proper  in  support  of  a  motion  for  a  non-suit,  and 
hence,  his  conclusion  that,  if  there  was  any  evidence  to 
support  the  verdict,  it  was  his  duty  to  uphold  it.     It  is  a 
rule  of  law,  well  established  in  this  jurisdiction,  that  a  mo- 
tion for  a  nonsuit  is  in  the  nature  of  a  demurrer  to  the 
evidence,  and  it  not  only  admits    all    that    the    evidence 
proves,    but    all    inferences    that    might    be    legitimately 
drawn  therefrom  tending  to  prove  a  fact  under  the  issues ; 
and,  if  there  is  any  evidence  offered  from  which  such  an 
inference  could  be  drawn,  it  is  the  duty  of  the  court  to 
permit  it  to  go  to  the  jury,  as  the  motion  is  a  test  of  the 
competency  of  the  evidence  to  prove  the  fact  to  which  it 
is  directed.     And  the  question  is,  upon  such  motion,  whetli 
er  there  is  any  evidence  tending  to  prove  the  material  al- 
legation upon  which  the  cause  of  action  is  based,  and  this  is 
one  of  law.     But  whether  a  given  amount  of  evidence  is 
sufficient  to  sustain  an  allegation  is  a  question  of  fact  for 
the  jury;  so  that,  if  there  is  any  evidence  tending  to  prove 
a  given  fact,  it  is  the  duty  of  the  court,  upon  the  motion  fov 
nonsuit  to  permit  it  to  go  to  the  jury,  and  to  take  their 
verdict   touching  it:     Vanhehber  v.  Plunheit,  26   Or.  562 
(27  L.  R.  A.  811,  38  Pac.  707),  and  cases  therein  cited. 

Under  the  statute  (Hill's  Ann.  Laws,  §  235,  subd.  6), 
the  court  is  authorized  to  set  aside  a  verdict  and  grant  a 
new  trial  for  ''insufficiency  of  the  evidence  to  justify  the 
verdict  or  other  decision,  or  that  it  is  against  law."  This 
statute  does  not  appear  to  have  received  any  direct  con- 
struction by  this  court;  but  there  are  authorities  elsewhere 
pertinent  to  the  inquiry,  and  they  leave  no  doubt  but  that, 
in  passing  upon  the  sufficiency  of  the  evidence  to  support 
the  verdict,  the  trial  court  is  authorized  to  weigh  and  con- 
sider all   the  evidence  which  has  been   submitted  to  the 


Sec.  5]  New  Trials  681 

jury,  and  if  it  is  ascertained  that  the  verdict  is  against  the 
clear  weight  thereof,  or  is  one  that  is  manifestly  unjust, 
or  that  reasonable  men  would  not  adopt  or  return,  to  set 
it  aside  and  grant  a  new  trial.  A  similar  statute  has  re- 
ceived express  construction  by  the  Supreme  Court  of  the 
United  States  in  the  case  of  Metropolitan  R.  R.  Co.  v. 
Moore,  121  U.  S.  558  (7  Sup.  Ct.  1334).  It  was  there  held 
that  the  language  used  in  the  statute,  which  gave  a  right 
to  set  aside  the  verdict  for  insufficient  evidence,  was  not  to 
be  limited  to  its  insufficiency  in  point  of  law,  but  that  it 
extended  also  to  its  insufficiency  in  point  of  fact.  Such 
evidence  is  said  to  be  insufficient  in  law  only  where  there 
is  a  total  absence  of  proof,  either  as  to  the  quantity  or 
kind,  or  from  which  no  inference  could  be  drawn  in  sup- 
port of  the  fact  sought  to  be  established.  But  insufficiency 
in  point  of  fact  may  exist  where  there  is  no  insufficiency 
in  point  of  law;  that  is,  there  may  be  some  evidence  to 
sustain  every  element  of  the  case,  competent  both  in  quan- 
tity and  quality  under  the  law,  and  yet  it  may  be  met  by 
countervailing  proof  so  potent  and  convincing  as  to  leave 
no  reasonable  doubt  of  the  opposite  conclusion.  So  it  is 
that,  upon  a  review  of  the  whole  evidence,  the  testimony 
in  support  of  the  cause  of  action  or  defense  may  be  so 
slight,  although  competent  in  law,  or  the  preponderance 
against  it  may  be  so  convincing,  that  a  verdict  may  seem 
to  be  plainly  unreasonable  and  unjust;  and  in  many  cases 
it  might  be  the  duty  of  the  court  to  withdraw  the  case  from 
the  jury,  or  to  direct  a  verdict  in  a  particular  way,  yet  in 
others,  where  it  would  be  proper  to  submit  the  case  to  the 
jury,  it  might  become  its  duty  to  set  aside  the  verdict  and 
grant  a  new  trial.  The  statute  of  the  District  of  Colum- 
bia, which  was  under  consideration,  was  evidently  taken 
from  the  New  York  practice  act;  and  the  court  in  Metro- 
politan R.  R.  Co.  V.  Moore,  121  U.  S.  558  (7  Sup.  Ct.  1334), 
seems  to  have  followed  the  New  York  decisions,  upon  the 
principle  that,  where  one  jurisdiction  adopts  the  statute 
of  another  state  or  jurisdiction,  it  also  adopts  the  construc- 
tion given  such  statute  by  the  courts  of  the  latter  jurisdic- 
tion. See  Algeo  v.  Duncan,  39  N.  Y.  313.  In  Slater  v. 
Drescher,  72  Hun.  425  (25  N.  Y.  Supp.  153),  it  is  said  that 
an  objection  to  the  verdict,  because  it  was  against  the 
weight  of  evidence,  means  the  same  thing  as  if  it  had 


682  Trial  Practice  [Chap.  J . 

been  based  upon  the  insufficiency  of  the  evidence  to  sup- 
port it.  The  Ohio  statute  is  substantially  the  same  as  our 
own,  and  it  is  there  held  that  the  court,  by  force  thereof 
may  grant  a  new  trial  where  the  verdict  is  "against  or 
contrary  to  the  weight  of  the  evidence:"  Weaver  v.  Colum- 
bus, S.  d  H.  V.  Ry.  Co.,  55  Ohio  St.  491  (45  N.  E.  717). 

The  California  statute  is  in  the  exact  language  of  ours, 
and  the  courts  of  that  state,  from  the  time  of  their  earliest 
cognizance  of  the  statute,  have  construed  it  as  conferring 
the  power  to  weigh  the  evidence  and  determine  its  suffi- 
ciency; and  that  if,  upon  the  whole,  the  judge  is  satisfied 
that  the  verdict  is  against  the  indubitable  preponderance 
or  clear  weight  of  evidence,  or  is  unjust,  or  such  as  reason- 
able men  would  not  return  under  the  circumstances  of  the 
case,  he  is  authorized,  in  his  discretion,  to  set  it  aside, 
which  discretion  is  not  subject  to  review  by  the  supreme 
court,  except  for  an  abuse  thereof:     Hall  v.  The  Emily 
Banning,  33  Cal.  522.     So,  it  was  said  in  People  v.  Lum 
Yit,  83  Cal.  130  (23  Pac.  228),  that  it  was  the  duty  of  the 
judge  to  grant  a  new  trial  if  he  is  not  satisfied  that  the 
evidence  as  a  whole  was  sufficient  to  sustain  the  verdict. 
And  in  People  v.  Knutte,  111  Cal.  453  (44  Pac.  166),  the 
'jourt,  speaking  through  Van  Fleet,  J.,  says:  "The  case 
was  argued  here  by  both  parties  upon  the  assumption  that 
the  new  trial  was  granted  upon  the  ground  that  the  evi- 
dence was  deemed  insufficient  to  sustain  the  verdict;  and, 
while   no   specific  ground   is   stated   in   the   order   of  the 
court,  it  may  be  safely  taken,  from  the  court's  action  in 
advising  the  jury  to  acquit,  that  this  assumption  of  coun- 
sel is  correct.  *  *  *     While  it  is  the  exclusive  province  of 
the  jury  to  find  the  facts,  it  is  nevertheless  one  of  the  most 
important   requirements   of   the  trial  judge   to   see   to   it 
that  this  function  of  the  jury  is  intelligently  and  justly 
oxercised.      In  this  respect,  while  he  cannot  competently 
interfere  with  or  control  the  jury  in  passing  upon  the  evi- 
dence,  he  nevertheless   exercises   a  very   salutary   super- 
visory power  over  their  verdict.     In  the  exercise  of  that 
power,  he  should  always  satisfy  himself  that  the  evidence 
as  a  whole  is  sufficient  to  sustain  the  verdict  found,  and, 
■f  in  his  sound  judgment  it  is  not,  he  should  unhesitatingly 
say  so,  and  set  the  verdict  aside."     See,  also,  Lorenzana 
c.'Camarillo,  41  Cal.  467;  Kile  v.  Tuhhs,  32  Cal.  332,  339; 


Sec.  5]  New  Trials  683 

Oullahan  v.  Starbuck,  21  Cal.  413;  Walton  v.  Maguire,  17 
Cal.  92. 

It  must  be  understood,  of  course,  that  a  mere  dissatis- 
faction of  the  judge  with  the  verdict  is  not  sufficient  ground 
for  disturbing  it,  but  the  court  must  exercise  its  judgment 
in  each  particular  case,  and  if,  from  all  the  testimony  given 
the  jury,  it  is  satisfied  that  the  verdict  is  against  the  clear 
weight  or  preponderance  of  evidence,  or  that  the  jury  has 
acted  unreasonably  in  returning  the  verdict,  or  has  been 
misled  or  misdirected,  or  has  acted  through  improper  mo- 
tives, it  is  the  duty  of  the  court  to  set  it  aside  and  grant 
a  new  trial:  Wright  v.  Southern  Express  Co.,  80  Fed. 
85,  93;  Mt.  Adams,  etc.,  Ry.  Co.  v.  Loivery,  20  C.  C.  A.  596, 
74  Fed.  463,  477.  There  may  be  sufficient  evidence  to  go 
to  the  jury  to  make  a  prima  facie  case,  yet  there  may  be 
opposing  evidence  so  strong,  palpable,  and  overwhelming 
as  to  dissipate  any  reasonable  idea  that  the  prima  facie 
case  should  prevail;  or  the  case  as  first  made  may  be  so 
strong,  and  the  countervailing  testimony  so  weak  and  un- 
satisfactory, as  to  preclude  an  honest  and  rational  judg- 
ment against  the  case  first  made.  In  either  case,  if  the 
jury  should  disregard  the  better  showing,  it  would  plainly 
be  the  duty  of  the  court  to  interpose,  upon  motion  for  a 
new  trial,  and  set  the  verdict  aside;  and  this  is  the  ra- 
tionale of  the  statute,  in  providing  that  the  verdict  may  be 
set  aside  for  insufficiency  of  evidence. 

Mr.  Justice  Beewee  has  laid  down  what  seems  to  us  to 
l)e  the  proper  rule  for  the  guidance  of  the  trial  judge,  in 
Kansas  Pac.  Ry.  Co.  v.  Kmikel,  17  Kan.  172.  He  says: 
"The  one  (the  trial  judge)  has  the  same  opportunity  as  the 
jury  for  forming  a  just  estimate  of  the  credence  to  be 
placed  in  the  various  witnesses,  and,  if  it  appears  to  him 
that  the  jury  have  found  against  the  weight  of  evidence, 
it  is  his  imperative  duty  to  set  the  verdict  aside.  We  do 
not  mean  that  he  is  to  substitute  his  own  judgment  in  all 
cases  for  the  judgment  of  the  jury,  for  it  is  their  province 
to  settle  questions  of  fact ;  and  when  the  evidence  is  nearly 
balanced,  or  is  such  that  different  minds  would  naturally 
and  fairly  come  to  different  conclusions  thereon,  he  has 
no  right  to  disturb  the  findings  of  the  jury,  although  his 
own  judgment  might  incline  him  the  other  way.  In  other 
words,  the  finding  of  the  jury  is  to  be  upheld  by  him  as 


684  Trial  Practice  [Chap.  17 

against  any  mere  doubts  of  its  correctness.  But  when 
his  judgment  tells  him  that  it  is  wrong;  that,  whether  from 
mistake,  or  prejudice,  or  other  cause,  the  jury  have  erred, 
and  found  against  the  fair  preponderance  of  the  evidence, 
— then  no  duty  is  more  imperative  than  that  of  setting 
aside  the  verdict,  and  remanding  the  question  to  another 
jury." 

We  think  the  court  in  the  case  at  bar  proceeded  upon  an 
erroneous  principle  of  law  in  limiting  its  inquiry  to  ascer- 
taining whether  there  was  any  evidence  from  which  the 
jury  might  infer  the  facts  which  were  attempted  to  be 
proven.  It  should  have  gone  further,  and  weighed  the 
evidence  in  accordance  with  the  principles  hereinbefore 
enunciated:  Larsen  v.  Oregon  Ry.  S  Nav.  Co.,  19  Or.  240 
247  (23  Pac.  974) ;  State  v.  Billings,  81  Iowa,  99  (46  N.  W. 
862) ;  City  of  Tacoma  v.  Tacoma  Light  S  Water  Co.,  16 
Wash.  288  (47  Pac.  738);  Hawkins  v.  Reichert,  28  Cal. 
534;  Dickey  v.  Davis,  39  Cal.  565;  Bennett  v.  Hobro,  72 
Cal.  178  (13  Pac.  473);  Reid  v.  Young,  7  App.  Div.  400 
(39  N.  Y.  Supp.  899);  First  Nat.  Bank  v.  Wood,  124  Mo. 
72  (27  S.  W.  554).  The  defendants  were  entitled  to  have 
their  motion  for  a  new  trial  passed  upon  in  pursuance  of 
correct  principles  of  law,  and,  the  trial  court  having  failed 
in  this,  the  cause  will  be  remanded,  with  directions  to  de- 
termine the  motion  under  the  rules  herein  announced.  The 
cumulative  character  of  the  newly-discovered  evidence  ren- 
ders defendants'  position  upon  the  first  ground  untenable; 
and,  as  it  pertains  to  the  second,  viz.,  that  the  damages  as- 
sessed are  excessive,  that  was  a  matter  within  the  discre- 
tion of  the  trial  court.  By  anything  we  have  said  in  this 
opinion  it  is  not  intended  to  indicate  in  any  manner  our 
impressions  touching  the  weight  of  the  evidence  submitted 
to  the  jury,  and  the  court  below,  having  seen  the  witnesses 
and  observed  their  manner,  must  act  entirely  upon  its  own 
judgment  in  passing  upon  the  motion. 

Reversed. 


Sec.  5]  New  Trials  685 


HARRISON  V.  SUTTER  STREET  RAILWAY 
COMPANY. 

Supreme  Court  of  California.     1897. 

116  California,  156. 

Van  Fleet,  J. — Plaintiff  had  verdict  and  judgment 
against  defendants  for  eight  thousand  dollars,  as  dam- 
ages suffered  by  the  heirs  of  his  intestate  through  the 
death  of  the  latter,  resulting  from  injuries  received  in  a 
collision  between  a  car  of  the  railroad  company,  on  which 
lie  was  a  passenger,  and  a  wagon  of  the  brewing  company, 
occasioned  by  the  negligence  of  the  defendants. 

The  court  below  granted  defendants  a  new  trial,  on  the 
ground  that  the  verdict  was  excessive;  and  the  plaintiff 
appeals  from  such  order,  urging  that  it  was  wholly  unwar- 
ranted under  the  e\adence,  and  was  an  abuse  of  discretion 
on  the  part  of  the  trial  court. 

Certain  preliminary  objections  are  interposed  by  defend- 
ants, and  reasons  suggested  why  the  order  appealed  from 
cannot  be  reviewed,  but  these  objections,  while  possibly  pos- 
sessed of  some  merit,  being  purely  technical,  and  the  court 
being  of  opinion  that  the  order  must  be  affirmed  on  the 
merits,  it  will  prove  more  satisfactory  to  both  parties,  and 
more  in  accord  with  the  disposition  of  the  court,  to  so  dis- 
pose of  the  appeal. 

That  the  granting  of  a  new  trial  is  a  thing  resting  so 
largely  in  the  discretion  of  the  trial  court  that  its  action 
in  that  regard  will  not  be  disturbed  except  upon  the  disclo- 
sure of  a  manifest  and  unmistakable  abuse  has  become 
axiomatic,  and  requires  no  citation  of  authority  in  its  sup- 
port. It  is  true  that  such  discretion  is  not  a  right  to  the 
'exertion  of  the  mere  personal  or  arbitrary  will  of  the 
judge,  but  is  a  power  governed  by  fixed  rules  of  law,  and 
to  be  reasonably  exercised  within  those  rules,  to  the  ac 
complishment  of  justice.  But  so  long  as  a  case  made 
presents  an  instance  showing  a  reasonable  or  even  fairly 
debatable  justification,  under  the  law,  for  the  action  taken, 
such  action  will  not  be  here  set  aside,  even  if,  as  a  ques- 
tion of  first  impression,  we  might  feel  inclined  to  lake  a 


^ 


686  Trial  Practice  [Chap.  17 

different  vie\v  from  that  of  the  court  below  as  to  the  pro- 
priety of  its  action.  More  especially  is  this  true  where, 
as  here,  the  question  rests  largely  in  fact,  and  involves  the 
proper  deduction  to  be  drawn  from  the  evidence.  The 
opportunities  of  the  trial  court,  in  such  instances,  for 
reaching  just  conclusions  are,  as  a  general  thing,  so  su- 
perior to  our  own,  that  we  will  not  presume  to  set  our 
judgment  against  that  of  the  former,  where  there  appears 
any  reasonable  room  for  difference. 

Appellant  does  not  seriously  question  the  correctness  of 
these  principles,  but  he  contends  that  the  record  does  not 
disclose  a  proper  case  for  their  application.  He  contends 
that  there  was  no  room  for  the  exercise  of  discretion ;  that 
the  evidence  as  to  the  amount  of  damages  suffered  was 
wholly  without  conflict;  that  there  was  nothing  to  indicate 
passion  or  prejudice,  except  the  amount  of  the  verdict  it- 
self, and  that  there  was  no  showing,  by  affidavit  or  other- 
wise, of  any  improper  conduct  on  the  part  of  the  jury.  As 
to  the  last  suggestion,  it  is  impertinent  to  the  inquiry. 
Granting  a  new  trial  for  the  misconduct  of  the  jury,  such 
as  may  be  shown  by  affidavit,  is  something  wholly  different 
and  apart  from  the  right  which  the  statute  gives  to  grant 
such  relief  on  the  ground  of  excessive  damages.  The  for- 
mer contemplates  some  overt  act  of  impropriety,  such  as 
receiving  evidence  out  of  court,  reaching  a  verdict  by 
chance,  and,  the  like;  while  an  excessive  verdict  implies  no 
misconduct  of  the  jury  necessarily,  but  simply  that  the  re- 
sult has  been  induced  through  excited  feelings  or  preju- 
dice, of  which  the  jury  may  not,  perhaps,  have  been  even 
aware,  but  which  has,  nevertheless,  precluded  an  impartial 
consideration  of  the  evidence.  Whether  the  verdict  is  ex- 
cessive is  to  be  determined  solely  from  a  consideration  of 
the  evidence  in  the  case,  and  whether  it  will  fairly  sustain 
the  conclusion  of  the  jury — a  question  which  cannot  be 
aided  by  the  showing  of  extrinsic  facts,  by  affidavit,  or 
otherwise. 

As  to  the  suggestion  that  the  evidence  touching  ''the 
amount  of  damages"  was  without  conflict,  we  are  not  whol- 
ly certain  that  we  appreciate  exactly  what  counsel  means. 
There  was  no  evidence  given  as  to  the  amount  of  the  dam- 
ages suffered.  The  damages  sued  for  were  in  their  nature 
unliquidated,  and  no  witness  pretended  to  fix  the  precise 


Sec.  5]  New  Trials  687 

amount  plaintiff  should  recover.  We  presume  counsel 
means  that  the  evidence  as  to  the  circumstances  which  tin 
jury  had  a  right  to  regard  in  determining  the  award  of 
damages,  such  as  age,  condition  of  life,  etc.,  of  deceased, 
was  without  conflict.  But  if  this  were  true,  which  we  do 
not  think  can  be  fairly  said,  the  question  as  to  the  proper 
deduction  and  conclusion  to  be  drawn  from  such  evidence 
would  still  remain  for  the  jury,  and  whether  their  con- 
sideration of  the  evidence  for  this  purpose  was  influenced 
by  passion  or  prejudice  would  not  necessarily  be  affected 
by  the  fact  that  the  evidence  was  without  conflict.  A  jury, 
if  excited  by  prejudice,  might  as  readily  award  unjust  dam- 
ages where  the  evidence  was  uncontradicted  as  where  it 
was  in  sharp  conflict. 

The  evidence  tended  to  show  that  deceased  was  about 
sixty-nine  years  of  age,  but  his  physical  appearance  would 
seem  to  have  indicated  more  advanced  years.  Dr.  Dorr, 
one  of  his  physicians,  testified  that  he  looked  older;  that 
he  appeared  between  seventy-five  and  eighty  years  of 
age;  while  Dr.  O'Brien,  a  physician  who  examined  him  on 
behalf  of  one  of  the  defendants,  after  the  accident  and 
before  his  death,  testified  that  he  considered  him  a  debili- 
tated man;  that  in  his  judgment  the  result  of  the  injury 
would  not  have  been  serious  but  for  his  age  and  debility. 
According  to  the  testimony  of  his  widow  his  health  was 
very  good,  but  he  had  suffered  all  his  life  from  sick  head- 
ache, for  which  she  had  been  required  to  nurse  him. 

His  income  was  about  one  hundred  and  ten  dollars  per 
month,  that  is,  it  did  not  appear  that  he  was  in  steady  or 
permanent  employment,  but  the  evidence  tended  to  show 
that  he  was  an  expert  accountant,  who  straightened  out 
books  and  tangled  accounts  when  called  upon,  and  that  his 
earnings  averaged  that  sum  monthly. 

According  to  the  Carlisle  mortality  tables,  he  had  an  ex- 
pectancy or  probable  lease  of  life  of  a  fraction  over  nine 
years  and  a  half.  He  had  dependent  on  him  a  wife  and  an 
adult  unmarried  daughter. 

Upon  these  facts  the  jury  were  instructed,  as  to  the 
question  of  damages,  in  effect,  that  they  should  estimate 
and  determine  the  amount  that  the  deceased  would  in  all 
reasonable  probability  have  earned  in  the  years  yet  re- 
maining to  him ;  and,  deducting  from  this  the  amount  which 


688  Trial  Peactice  [Chap.  17 

lie  would  reasonably  require  for  his  own  personal  use  and 
maintenance,  give  a  verdict  which  would  pecuniarily  com- 
pensate the  heirs.  It  is  conceded  that  this  instruction  gave 
the  correct  rule  for  the  guidance  of  the  jury. 

In  view  of  this  evidence,  and  the  rule  of  compensation 
by  which  the  jury  were  to  be  governed,  we  think  it  quite 
manifest  that  we  should  not  be  justified  in  holding  that 
there  was  an  abuse  of  discretion  in  setting  aside  the  ver- 
dict. The  jury  would  seem  to  have  proceded  upon  the 
theory  that  the  deceased's  expectancy  of  life  would  be 
fully  realized,  and  that  he  would  continue  to  the  end  with 
the  same  earning  capacity  as  that  possessed  by  him  at  the 
time  of  his  death,  for  their  verdict  implies  that  he  would 
have  earned,  over  and  above  the  amount  required  for  his 
personal  needs,  the  large  net  sum  of  eight  thousand  dol- 
lars, and  this  would  necessarily  contemplate  constant  em- 
ployment without  interruption  from  sickness  or  other  cause 
and  with  a  rate  of  earnings  in  no  way  diminished,  since  it 
will  readily  be  perceived  that  according  to  his  income  his 
utmost  gross  earnings  in  the  given  time  would  not  have 
exceeded  twelve  thousand  dollars. 

Such  a  result  does  not  accord  with  ordinary  human  ex- 
'perience.  The  deceased's  expectancy  of  life  was  not  a  cer- 
tainty, but  a  mere  probability.  It  is  true  he  might  have 
lived  even  longer  than  the  limit  of  such  expectancy,  but 
the  chances  were  much  against  it.  He  might  also  have 
retained  his  vigor  and  ability  to  labor  to  the  last,  but  ordi- 
nary experience  teaches  that  the  weight  of  advancing  years, 
after  the  age  attained  by  deceased,  bears  strongly  against 
such  result.  Under  these  circumstances  we  do  not  think 
it  should  be  said  that  the  conclusion  of  the  trial  judge  was 
without  support  in  the  evidence. 

But  appellant  urges  that  it  is  only  where  the  verdict 
is  so  grossly  disproportionate  to  any  reasonable  limit  of 
compensation  warranted  by  the  facts,  as  to  shock  the  sense 
of  justice,  and  raise  at  once  a  strong  presumption  that  it  is 
based  on  prejudice  or  passion  rather  than  sober  judgment, 
that  the  judge  is  at  liberty  to  interpose  his  judgment  as 
against  that  of  the  jury;  and  that  such  an  instance  is  not 
shown.  The  rule  invoked  is  correct,  as  addressed  to  the 
function  of  the  trial  court,  or  when  asking  this  court  to  set 
aside  the  verdict  where  it  has  been  refused  by  the  court 


Sec.  5]  New  Trials  680 

below.  But  when  we  are  asked  to  review  the  act  of  that 
court,  where  in  the  exercise  of  its  discretionary  power  it 
has  seen  fit  to  set  aside  the  verdict  on  this  ground,  a  very 
different  rule  prevails.  Every  intendment  is  to  be  in- 
dulged here  in  support  of  the  action  of  the  court  below, 
and,  as  elsewhere  suggested,  it  will  not  be  disturbed  if  the 
question  of  its  propriety  be  open  to  debate. 

Order  granting  new  trial  affirmed. 
Hareison,  J.,  and  Garoutte,  J.,  concurred. 


GRAHAM  V.  CONSOLIDATED  TRACTION  COM- 
PANY. 

Supreme  Court  of  New  Jersey.    1900. 

65  New  Jersey  Laiv,  539. 

On  rule  to  show  cause. 

Before  Justices  Depue,  Van  Syckel  and  Gummeee. 

Per  Curiam. 

This  suit  was  brought  by  the  plaintiff  as  administrator 
of  Melville  T.  Graham,  deceased,  under  the  act  which  pro- 
vides for  recovery  of  damages  in  cases  where  the  death  of 
a  person  is  caused  by  wrongful  act,  neglect  or  default. 
Gen.  Stat.  p.  1138.  The  suit  is  for  the  benefit  of  the  father 
of  the  deceased,  as  his  next  of  kin,  to  recover  damages  for 
the  *' pecuniary  injury  resulting  to  him  from  the  death  of 
the  deceased."  The  deceased  was  a  boy  four  years  and 
four  months  old  at  the  time  the  accident  happened  which 
resulted  in  his  death.  The  jury  found  a  verdict  for  the 
plaintiff  and  assessed  the  damages  at  $2,000. 

This  case  was  first  tried  in  September,  1896,  and  resulted 
in  a  verdict  for  $5,000  for  the  plaintiff.  Upon  a  rale  to 
show  cause  why  this  verdict  should  not  be  set  aside  this 
court,  June  Term,  1897,  held  that  the  damages  were  ''ab- 
surdly excessive,"  and  ordered  that  a  new  trial  be  granted 
unless  the  plaintiff  would  accept  the  sum  of  $1,000,  which 
lie  declined  to  do.  In  October,  1897,  the  case  was  again 
tried,  and  a  second  verdict  for  $5,000  was  rendered.     This 

T.  p. — 44 


690  Trial  Practice  [Chap.  17 

verdict  was  set  aside  on  tlie  ground  that  the  damages  were 
excessive.  Graham  v.  Consolidated  Traction  Co.,  33 
Vroom  90.  The  case  was  retried  January  30th,  1899,  and 
resulted  in  a  verdict  in  favor  of  the  plaintiff  for  $5,000. 
The  verdict  was  set  aside  on  two  grounds — first,  that  the 
plaintiff  had  not  established  by  a  preponderance  of  proof 
that  defendant  was  liable;  second,  that  the  damages  were 
excessive.  Graham  v.  Consolidated  Traction  Co.,  35  Id. 
10. 

The  evidence  at  this  trial  is  substantially  the  same  as  it 
was  at  the  last  preceding  trial.  Two  additional  witnesses 
were  examined  on  the  part  of  the  plaintiff,  Olivett  Butler 
and  Joseph  A.  Smith.  As  to  the  amount  of  damages  that 
should  be  recovered  the  case  is  not  in  anywise  altered. 
With  respect  to  the  case  upon  the  merits  as  presented  at 
the  last  preceding  trial,  the  opinion  of  Chief  Justice  Magie 
demonstrates  that  it  was  insufficient  to  sustain  any  verdict 
in,  favor  of  the  plaintiff.  A  careful  examination  and  con- 
sideration of  the  testimony  at  the  last  trial,  including  that 
given  by  Olivette  Butler  and  Joseph  A.  Smith,  the  new 
witnesses  called  by  the  plaintiff,  leave  the  case  substantial- 
ly in  the  same  condition,  upon  the  weight  of  the  evidence, 
that  it  was  in  when  the  last  preceding  verdict  was  set 
aside.  The  observations  of  the  Chief  Justice  on  the  evi- 
dence at  that  time  apply  with  full  force  to  the  present 
case. 

The  rule  should  be  made  absolute  on  both  grounds.^ 

t  This  is  probably  an  extreme  case,  in  one  aspect  of  it.  Usually  the  court 
will  acquiesce  in  the  decision  of  the  jury  if  a  second  verdict  is  rendered  in 
substantial  conformity  to  that  which  was  set  aside  as  contrary  to  the  evidence. 
Bryant  v.  Commonwealth  Tns.  Co.  (1833)  13  Pick.  (Mass.)  543;  Monarch  G. 
«S  S.  Min.  Co.  V.  McLaughlin  (1877)  1  Ida.  650;  Van  Doren  v.  Wright  (1896) 
65  Minn.  80,  67  N.  W.  668. 


Sec.  5]  New  Trials  691 

TATHWELL  V.  CITY  OF  CEDAR  RAPIDS. 

Supreme  Court  of  Iowa.    1903, 
122  Iowa,  50. 

Action  to  recover  damages  resulting  from  personal  in- 
juries received  by  plaintiff  while  driving  in  a  street  of  de- 
fendant city  by  reason  of  his  horse  stepping  into  a  hole  in 
the  highway  in  or  beside  a  culvert,  the  result  being  that 
plaintiff  was  thrown  to  the  ground.  Judgment  for  plain- 
tiff on  a  former  trial  was  reversed,  and  a  new  trial  ordered. 
114  Iowa,  180.  On  this  trial  verdict  was  returned  for  the 
plaintiff  for  $100  damages,  which,  on  plaintiff's  motion, 
was  set  aside  as  inadequate.  From  this  ruling  defendant 
appeals. — A  firmed. 

McClain,  J. — There  was  a  conflict  in  the  evidence  as  to 
whether  the  street  was  defective  at  the  place  where  plain- 
tiff was  injured,  but  the  verdict  of  the  jury  for  the  plain- 
tiff establishes  the  existence  of  a  defect  and  the  negligence 
of  the  city  with  reference  thereto,  and  we  have  for  con- 
sideration only  this  question:  Did  the  trial  judge  err  in 
setting  aside  the  verdict  on  the  ground  that  the  damages 
awarded  to  plaintiff  for  the  injury  were  inadequate?  The 
right  of  jury  trial,  as  uniformly  recognized  under  the  com- 
mon-law sj^stem,  involves  the  determination  by  the  jury, 
rather  than  by  the  judge,  of  questions  of  fact,  including  the 
amount  of  damage  to  be  given  where  compensation  is  for 
an  unliquidated  demand.  Nevertheless,  the  trial  courts 
have  exercised  from  early  times  in  the  history  of  the  com- 
mon law  the  power  to  supervise  the  action  of  the  jury,  even 
as  to  the  measure  of  damages,  and  to  award  a  new  trial 
where  the  verdict  is  not  supported  by  the  evidence  and  is 
manifestly  unjust  and  perverse.  And  while  it  is  uniformly 
held  that  the  trial  judge  will  interfere  with  the  verdict  of 
the  jury  as  to  matters  of  fact  with  reluctance,  and  only 
where,  on  the  very  face  of  the  evidence  allowing  every 
presumption  in  favor  of  the  correctness  of  the  jury's  ac- 
tion, it  is  apparent  to  a  reasonable  mind  that  the  verdict  is 
clearly  contrary  to  the  evidence,  yet  the  power  of  the  judge 
to  interfere  in  extreme  cases  in  unquestionable.     It   has 


692  Teial  Practice  [Chap.  17 

sometimes  been  said  that  the  judge  should  not  interfere 
where  the  verdict  is  supported  by  a  scintilla  of  evidence; 
but  the  scintilla  doctrine  has  been  discarded  in  this  state, 
and  is  not  now  generally  recognized  elsewhere.  Meyer  v. 
Houck,  85  Iowa,  319.  The  general  scope  and  extent  of  the 
judge's  supervisory  power  with  reference  to  the  jury's 
verdict  as  to  questions  of  facts  is  well  illustrated  by  the 
very  first  reported  case  in  which  the  power  a])pears  to 
have  been  exercised — that  of  Wood  v.  Gunston,  decided  in 
1655  by  the  Court  of  King's  Bench  (or,  as  it  was  called  dur- 
ing the  commonwealth,  Upper  Bench),  found  in  Style's  Re- 
ports, on  page  466.  The  action  was  upon  the  case  for 
speaking  scandalous  words  against  the  plaintiff,  charging 
him,  among  other  things,  with  being  a  traitor.  The  jury 
gave  plaintiff  one  thousand  five  hundred  pounds  damages, 
whereupon  the  defendant  moved  for  a  new  trial  on  the 
ground  that  the  damages  were  excessive,  and  that  the  jury 
had  favored  the  plaintiff.  In  opposition  to  this  it  was  said 
in  argument  that,  after  a  verdict  the  partiality  of  the  jury 
ought  not  to  be  questioned,  nor  was  there  any  precedent 
for  it — '*in  our  books  of  the  law,"  and  that  it  would  be  of 
dangerous  consequence  if  it  should  be  permitted,  and  the 
greatness  of  the  damages  cannot  be  a  cause  for  a  new  trial. 
But  counsel  for  the  other  party  said  that  the  verdict  was  a 
"packed  business,"  else  there  could  not  have  been  so  great 
damages,  and  that  the  court  had  power,  "in  extraordinary 
cases  such  as  this  is  to  grant  a  new  trial."  The  chief  jus^ 
tice  thereupon  said:  "It  is  in  the  discretion  of  the  court 
in  some  cases  to  grant  a  new  trial,  but  this  must  be  a 
judicial,  and  not  an  arbitrary,  discretion,  and  it  is  frequent 
in  our  books  for  the  court  to  take  notice  of  miscarriages 
of  juries,  and  to  grant  new  trials  upon  them.  And  it  is 
for  the  people's  benefit  that  it  should  be  so,  for  a  jury  may 
sometimes,  by  indirect  dealings,  be  moved  to  side  with  one 
party,  and  not  to  be  indifferent  betwixt  them,  but  it  cannot 
be  so  intended  with  the  court;  wherefore  let  there  be  a 
new  trial  the  next  term,  and  the  defendant  sliall  pay  full 
costs,  and  judgment  to  be  upon  this  verdict  to  stand  for 
security  to  pay  what  shall  be  recovered  upon  the  next  ver- 
dict." This  case  is  especially  interesting  in  connection 
with  the  present  discussion,  because  it  is  one  in  which  the 


Sec.  5]  New  Trials  693 

assessment  of  damages  was  peculiarly  within  the  province 
of  the  jury,   and  because  the  nature  of  the  supervisory 
power  of  the  trial  judge  is  explained  as  being,  in  effect,  to 
set  aside  a  verdict  for  excessive  damages  in  such  cases 
which  seem  to  have  been  the  result  of  passion  and  preju- 
dice, and  not  the  deliberate  exercise  of  judgment.     That 
the  practice  of  granting  new  trials  under  such  circumstances 
has  continued  in  all  the  courts  administering  the  common 
law  from  the  time  of  the  case  just  cited  to  the  present  time 
is  a  matter  of  common  knowledge  with  the  profession,  and 
citation  of  authorities  would    be    superfluous.     That    the 
power  is  exercised  to  prevent  miscarriage  of  justice  by 
reason  of  the  rendition  of  a  verdict  by  the  jury  which  is 
wholly  unreasonable,  in  view  of  the  testimony,  which  is 
given  in  the  presence  of  the  court,  is  universally  conceded. 
But  the  question  with  which  we  are  now  more  particular- 
ly concerned  is  whether  this  power  of  the  trial  judge  may 
be  exercised  where  the  injustice  consists  in  rendering  a 
verdict  for  too  small  an  amount.     If  the  case  is  one  in 
which  the  measure  of  damages  is  a  question  of  law,  the 
court  has,  of  course,  the  same  power  to  set  aside  a  verdict 
for  too  small  an  amount  as  one  which  is  excessive ;  and  this 
is,  in  general,  true  without  question  where  the  damages  are 
capable  of  exact   computation — that  is,  where    the    facts 
established  by  the  verdict  of  the  jury  show  as  matter  of 
law  how  much  the  recovery  should  be.     In  such  cases  the 
court  may  grant  a  new  trial,  unless  the  defendant  will  con- 
sent to  a  verdict  for  a  larger  amount  fixed  by  the  court, 
than  that  found  by  the  jury;  just  as  in  case  of  excessive 
damages  under  similar  circumstances  the  court  may  re- 
duce the  amount  for  which  the  verdict  shall  be  allowed,  to 
stand,  on  penalty  of  setting  it  aside  if  the  successful  party 
does  not  agree  to  the  reduction.    Carr  v.  Miner,  42  111.  179; 
James  v.  Morey,  44  111.  352.    It  seems  to  have  been  thought 
by  some  courts  that  the  general  supervisory  power  over 
verdicts,  where  the  amount  of  damage  is  not  capable  of 
computation,  and  rests  in  the  sound  discretion  of  the  jury, 
should  not  be  exercised  where  the  verdict  is  for  too  small 
an  amount;  at  least  not  with  the  same  freedom  as  in  cases 
where  it  is  excessive.     Earlier  v.  Dixie,  2  Strange,  1051; 
Pritchard  v.  Hewitt,  91  Mo.  547  (4  S.  W.  Eep.  437,  60  Am. 


694  Trial  Peactice  [Chap.  17 

Eep.  265) ;  Martin  v.  Atkinson,  7  Ga.  228  (50  Am.  Dec.  403). 
No  such  limitation  on  the  supervisory  power  of  the  trial 
judge  has  been  definitely  established,  and  by  the  great 
weight  of  authority,  both  in  England  and  America,  the 
power  to  set  aside  the  verdict,  when  manifestly  inconsis- 
tent with  the  evidence,  and  the  result  of  a  misconception  by 
the  jury  of  their  powers  and  duties,  is  as  fully  recognized 
where  the  verdict  is  inadequate  as  where  it  is  excessive; 
and  ample  illustration  of  the  exercise  of  this  power  is 
found  in  actions  to  recover  damages  for  personal  injuries 
or  injury  to  the  reputation,  although  in  such  cases  the 
amount  of  damage  is  jDeculiarly  within  the  jury's  discre- 
tion. Phillips  V.  London  S  S.  W.  R.  Co.,  5  Q.  B.  D.  781; 
Robinson  v.  Town  of  Waupaca,  77  Wis.  544;  Whitney  v. 
Mihvaukee,  65  Wis.  409 ;  Caldivell  v.  Vichshurg,  8.  &  P.  R. 
Co.,  41  La.  Ann.  624  (6  So.  Rep.  217);  Benton  v.  Collins, 
125  N.  C.  83  (34  S.  E.  Rep.  242,  47  L.  R.  A.  33) ;  McNeil  v. 
Lyons,  20  R.  I.  672  (40  Atl.  Rep.  831) ;  Lee  v.  Publishers, 
George  Knapp  S  Co.,  137  Mo.  385  (38  S.  W.  Rep.  1107); 
McDonald  v.  Walter,  40  N.  Y.  551;  Carter  v.  Wells,  Fargo 
(&  Co.,  (C.  C.)  64  Fed.  Rep.  1007. 

Counsel  for  appellant  urge,  however,  that  the  whole  mat- 
ter of  granting  new  trials  is  controlled  by  the  provisions 
relating  to  that  subject  found  in  the  Code,  and  that  these 
provisions  supersede  the  common-law  rules  on  the  subject. 
It  has  not  been  our  understanding  that  the  provisions  of 
the  Code  relating  to  practice  are  intended  to  entirely  super- 
sede the  rules  of  the  common  law.  They  are,  like  other | 
statutory  law,  merely  additions  to  or  modifications  of  com- 
mon-law rules.  We  have  licld  for  instance,  that,  without 
any  statutory  provision  on  the  subject,  the  court  may  di- 
rect a  verdict  in  a  pro])er  case;  that  new  trials  may  be 
granted  in  equity  after  the  expiration  of  one  year  from  the 
time  of  rendering  judgment,  although  the  statutory  provi- 
sions as  to  new  trials  after  judgment  limit  the  right  to  one 
year;  that  the  Supreme  Court  may  grant  a  restraining 
order,  in  the  exercise  of  its  general  appellate  jurisdiction, 
although  there  is  no  statutory  provision  whatever  with 
reference  thereto.  These  illustrations  indicate  that  the 
provisions  of  the  Code  as  to  practice  supersede  common- 
law  rules  only  so  far  as  they  are  inconsistent  therewith. 


Sec.  5]  New  Trials  695 

The  legislature  has  never  attempted  a  complete  codification 
of  the  rules  and  principles  of  the  common-law,  either  as  to 
substantive  or  remedial  rights.  The  language  of  Code, 
section  3446,  seems  to  be  directly  applicable.  It  is  as  fol- 
lows: "The  rule  of  the  common-law,  that  statutes  in 
derogation  thereof  are  to  be  strictly  construed,  has  no  ap- 
plication to  this  Code.  Its  provisions  and  all  proceedings 
under  it  shall  be  liberally  construed  with  a  view  to  pro- 
mote its  objects  and  assist  the  parties  in  obtaining  justice." 
We  are  inclined,  therefore,  to  the  view  that  the  sections 
relating  to  new  trial  do  not  necessarily  cover  the  whole 
ground,  nor  prevent  us  from  recognizing  powers  of  the  trial 
court  in  this  respect  which  have  generally  been  exercised 
under  the  common-law  system.  See  McDonald  v.  Walter, 
40  N.  Y.  551. 

However  this  may  be,  we  think  the  authority  is  expressly 
given  in  Code,  section  3755,  to  set  aside  a  verdict  which  is 
manifestly  inadequate  under  the  evidence.  It  is  true  that 
paragraph  four  of  that  section,  with  reference  to  the  in- 
fluence of  passion  or  prejudice,  mentions  excessive  dam- 
ages, and  that  paragraph  five,  with  relation  to  error  in  the 
assessment  of  the  amount  of  recovery,  whether  too  large 
or  too  small,  refers  only  to  actions  upon  contract,  or  for 
the  injury  or  detention  of  property.  But  paragraph  six 
authorizes  a  new  trial  if  the  verdict  is  not  sustained  by. 
sufficient  evidence,  and  we  see  no  reason  for  limiting  this 
]iaragraph  to  cases  where,  under  the  evidence,  it  appears 
that  the  verdict  should  have  been  the  other  way.  A  verdict 
in  favor  of  plaintiff  for  $100  is  as  much  against  the  plain- 
tiff as  to  any  right  to  recover  damages  not  covered  by  the 
verdict  as  though  it  had  been  outright  for  the  defendant. 
Suppose  the  plaintiff  sues  on  a  promissory  note,  and,  de- 
fendant having  interposed  a  general  denial,  plaintiff  intro- 
duces the  note  in  evidence  (the  signature  not  being  denied 
under  oath),  and  there  is  no  evidence  whatever  that  the  note 
is  not  valid,  or  has  been  discharged,  and  nevertheless  the 
jury  returns  a  verdict  for  defendant,  could  it  be  claimed 
that  a  new  trial  should  not  be  granted?  And  yet  this  case 
does  not  come  under  any  of  the  paragraphs  of  the  action 
on  new  trial,  unless  it  comes  under  the  paragraph  last 
above  referred  to.    We  think  this  paragraph  should  have  a 


696  Trial  Peactice  [Chap.  17 

liberal  interpretation,  and  that  it  covers  such  a  case  as  the 
one  now  before  us.  Similar  provisions  in  other  Codes  have 
been  construed  as  authorizing  the  setting  aside  of  verdicts 
on  plaintiff's  motion  because  the  damages  allowed  are  in- 
adequate. Du  Brutz  V.  Jestup,  54  Cal.  118;  Bennett  v. 
Hohro,  72  Cal.  178  (13  Pac.  Eep.  473) ;  Emmons  v.  Sheldon, 
26  Wis.  648;  Henderson  v.  St.  Paul  S  D.  R.  Co.,  52  Minn. 
479  (55  N.  W.  Rep.  53) ;  McDonald  v.  Walter,  40  N.  Y.  551. 

The  trial  judge  therefore  had  the  power  to  set  aside 
the  verdict  below  on  account  of  the  inadequacy  of  the  dam- 
ages, and  the  question  is  whether  the  case  is  a  proper  one 
for  the  exercise  of  such  power.  We  interfere  reluctantly 
with  the  action  of  the  lower  court  in  ruling  on  motions  for 
a  new  trial,  and  especially  where  a  new  trial  has  been 
granted.  Peebles  v.  Peebles,  77  Iowa,  11;  Morgan  v.  Wag- 
ner, 79  Iowa,  174;  Hophins  v.  Knapp  S  Spaulding  Co.,  92 
Iowa,  212;  Mally  v.  Mally,  114  Iowa,  309;  Chouquette  v. 
Southern  Electric  R.  Co.,  152  Mo.  257.  Although  it  is 
urged  in  this  case  that  the  jury  allowed  to  the  plaintiff  the 
actual  damages  sustained  by  him  so  far  as  they  were  shown 
by  any  evidence  corroborating  his  own  testimony,  neverthe- 
less, it  clearly  appears  that,  if  his  unimpeached  testimony 
is  to  be  credited,  he  was  damaged  to  a  much  larger  extent 
than  is  covered  by  the  verdict  rendered  by  the  jury.  We 
do  not  hold  that  the  trial  judge  may  substitute  his  judg- 
ment of  the  credibility  of  the  witness  in  place  of  the  judg- 
ment which  the  jury  has  exercised,  but  we  do  say  that  the 
trial  judge  may,  if  he  finds  that  the  jury  have  failed  to 
allow  the  amount  of  damages  shown  by  uncontradicted  testi- 
mony, set  aside  the  verdict  as  in  conflict  with  the  evidence 
and  award  a  new  trial. 

The  ruling  of  the  lower  court  was  therefore  correct,  and 
it  is  Affirmed. 


Sec.  6]  New  Teials  697 

Section  6.     Vekdict  Contrary  to  Law. 
LYNCH  V.  SNEAD  ARCHITECTURAL  IRON  WORKS. 

Court  of  Appeals  of  Kentucky.    1909, 
132  KentiicTcy,  241. 

Opinion  of  the  court  by  Judge  Lassing — Reversing. 

********** 

Appellant  complains  that  the  jury  in  arriving  at  their 
verdict  wholly  disregarded  instruction  No.  1,  and  returned 
their  verdict  in  favor  of  plaintiff  in  spite  of  it.  It  is  urged 
by  counsel  for  appellant  that,  without  entering  into  a  con- 
sideration as  to  whether  or  not  this  instruction  properly 
presented  the  law  as  warranted  by  the  facts  proven,  never- 
theless it  was  the  law  of  this  case,  and  in  disregarding  it 
and  returning  a  verdict  in  favor  of  plaintiff  as  they  did  the 
jury  found  contrary  to  the  law,  and  that,  for  this  reason, 
the  judgment  predicated  upon  their  verdict  should  be  re- 
versed and  a  new  trial  awarded.  On  the  other  hand,  it  is 
claimed  by  plaintiff's  counsel  that  this  instruction  did  not 
fairly  present  the  law  of  the  case,  as  warranted  by  the  facts, 
but  that  as  the  jury,  even  though  not  properly  instructed, 
reached  a  reasonably  fair  and  just  conclusion,  their  ver- 
dict and  finding  should  not  be  disturbed.  The  greater  part 
of  the  briefs  of  opposing  counsel  is  devoted  to  a  considera- 
tion of  this  question.  The  defendant  did  not  except  or  ob- 
ject to  this  instruction,  nor  is  his  counsel  now  objecting 
to  same,  but  his  complaint  is  that  the  jury  disregarded  this 
instruction.  *  *  * 

Section  340,  subsec.  6,  Civ.  Code  Prac.  makes  one  of  the 
grounds  upon  which  a  new  trial  may  be  granted  ''that  the 
verdict  or  decision  is  not  sustained  by  sufficient  evidence,  or 
is  contrary  to  law."  An  examination  of  the  authorities 
discloses  the  fact  that  courts  of  last  resort  of  the  various 
states  are  not  by  any  means  harmonious  in  the  construc- 
tion which  they  have  placed  upon  similar  code  provisions, 
and  there  is,  at  least,  an  apparent  lack  of  uniformity  upon 
this  point  in  the  decisions  in  our  own  state.  The  superior 
court  in  the  cases  of  Gausman  v.  Paff,  10  Ky.  Law  Rep. 


698  Trial  Practice  [Chap.  17 

240;  Palmer  v.  Jolinson,  13  Ky.  Law  Eep.  590;  Burns  v. 
McGihhen,  9  Ky.  Law  Rep.  441,  and  Bertman  v.  Ehert's 
Adm'r.,  9  Ky.  Law  Rep.  198,  held  that,  where  a  verdict  is 
sought  to  be  avoided  on  the  ground  that  it  is  contrary  to 
law,  the  complaint  relates  to  the  law  as  given  by  the  court 
in  its  instructions  to  the  jury,  and  not  as  it  should  have 
been  given,  or,  in  other  words  these  decisions  hold  that 
where  a  new  trial  is  sought  on  the  ground  that  the  verdict 
is  contrary  to  law,  the  ''law"  here  referred  to  means  the 
"law"  as  declared  or  given  by  the  court,  and  not  as  it 
should  have  been  given;  that,  even  though  the  court  was 
in  error  and  failed  to  give  the  law  correctly,  nevertheless 
the  jury  was  bound  by  the  "law"  as  given,  and,  if  their 
verdict  was  contrary  to  the  "law",  this  fact  would  author- 
ize a  reversal  of  the  case,  and  the  granting  of  a  new  trial. 
And  in  the  case  of  Curran  v.  Stein,  etc.,  110  Ky.  99,  60  S. 
W.  839,  22  Ky.  Law  Rep.  1575,  this  court  said:  "It  is  in- 
sisted for  appellant  that  the  court  erred  in  giving  the  jury 
a  peremptory  instruction,  or  in  interfering  with  the  free- 
dom of  their  deliberation  by  requiring  them  to  return  a 
verdict  which  they  were  unwilling  to  render.     There  was 
r\o  error  of  the  court  in  requiring  the  jury  to  obey  his  in- 
structions.    The  peremptory  instruction  of  the  court  to  the 
jury,  like  any  other  order  the  court  may  make  in  a  case, 
must  be  obeyed.  *  *  *    To  hold  that  the  jury  may  disobey 
the  peremptory  direction  of  the  court  would  be  to  vest  the 
jury  with  power  to  review  the  decisions  of  the  court  on  the 
law  of  the  case."    As  opposed  to  this  idea,  this  court  in 
the  case  of  Armstrong  v.  Keith,  3  J.  J.  March.  153,  20  Am. 
Dec.  131,  upheld  a  verdict  which  was  admittedly  contrary 
to  "law"  where  the  instruction  or  law,  as  given  by  the 
court,  was  erroneous,  and  said  that  the  finding  of  the  jury, 
under  such  circumstances,  was  sufficient  to  justify  a  final 
judgment.     *  *  * 

That  this  court  had,  even  prior  to  1830,  when  the  opinion 
in  the  case  of  Armstrong  v.  Keith,  was  delivered,  commit- 
ted itself  to  the  doctrine  that  the  jury  may  not  disregard 
the  "law"  as  given  by  the  court,  and  decide  on  the  facts  to 
the  contrary,  notwithstanding  the  instruction,  while  not 
directly  decided,  is  incidentally  established.  In  the  case 
of  Sfiiith  V,  Morrison,  3  A.  K.  Marsh,  81,  in  passing  upon 


Sec.  6]  New  Teials  690 

the  ruling  of  the  trial  court  in  stopping  Smith's  counsel 
from  arguing  a  proposition  of  law  seemingly  contrary  to 
that  given  by  the  court,  this  court  said :     ''In  thus  restrain- 
ing counsel  we  are  of  opinion  the  court  acted  perfectly 
correct.     After  having  obtained  from  the  court  an  opinion 
on  the  legal  import  of  the  settlement,  a  decent  regard  for 
that  opinion  would  seem  to  forbid  the  same  matter  from 
being  again  canvassed  before  the  jury,"  *  *  *     The  deci- 
sions of  other  courts  of  last  resort  upon  this  point  are  not 
harmonious,  but  the  decided  weight  of  the  authorities  is  to 
the  effect  that,  where  a  statute  authorizes  a  reversal  upon 
the  ground  that  the  verdict  is  contrary  to  the  "law,"  the 
"law"  referred  to  means  the  "law"  of  tliat  case  as  given 
by  the  court,  whether  right  or  wrong.     The  Supreme  Courts 
of  California,  Iowa,  Montana,  Nebraska,  New  York,  Penn- 
sylvania, South  Carolina,  Alabama,    South    Dakota,    and 
England  have  held  that,  where  a  verdict  is  returned  con- 
trary to  "law"  as  given  by  the  instructions  of  the  court, 
it  is  such  a  verdict  as  will  authorize  the  trial  court  to  set 
aside  because  contrary  to  law.     The  "law"  referred  to  in 
the  opinions  undef  consideration  is  invariably  held  to  mearn 
the  "law"  as  given  by  the  court,  and  not  as  it  should  or 
might  have  been  given.     On  the  other  hand,  the  Supremei 
Courts  of  Georgia,  Mississippi,  and  Texas  have  taken  ai 
contrary  view,  and,  where  the  verdict  is  in  harmony  with 
what  the  court  conceives  to  be  the  "law"  should  have  been, 
rather  than  in  harmony  with  the  law  as  given  by  the  trial 
judge,  the  finding  of  the  jury  has  not  been  disturbed. 

In  the  case  of  Murray  v.  Heinze,  17  Mont.  353,  42  Pac. 
1057,  43  Pac.  714,  the  court  had  under  consideration  the 
correctness  of  the  ruling  and  judgment  of  the  trial  court 
because  it  was  contrary  to  the  "law"  as  given  by  the  court. 
Upon  appeal  it  was  urged  that  this  was  error  because  the 
instruction  or  "law"  as  given  by  the  trial  court  was  itself 
erroneous.  In  disposing  of  this  question  the  court  said: 
"But  counsel  for  the  appellant  contend  that,  the  instruction 
being  erroneous,  the  court  erred  in  setting  aside  the  ver- 
dict, because  of  the  fact  that  the  jury  wliolly  disregarded 
it.  The  question  presented  is:  Had  the  jury  the  right 
to  disregard  the  instructions  of  the  court  if  erroneous? 
This  is  a  most  important  question  in  the  administration  of 


700  Trial  Peactice  [Chap.  17 

the  law.  It  must  be  conceded  that  there  is  a  conflict  of 
authority  on  this  question.  Counsel  for  the  appellant  cite 
a  number  of  authorities  in  support  of  their  claim  that  the 
jury  may  disregard  the  instructions  of  the  court,  if  er- 
roneous, if  the  verdict  is  otherwise  in  accord  with  the  law, 
and  that  it  would  be  error  in  the  court  under  such  circum- 
stances to  set  aside  the  verdict.  It  seems  from  the  authori- 
ties cited  by  appellant  that  Kentucky,  Georgia,  Texas,  and 
some  other  states  have  so  held.  A  number  of  the  cases 
cited  by  counsel  for  appellant  are  not  exactly  in  point ;  that 
is,  they  are  cases  in  which  the  jury  did  not  seeminglv  dis- 
regard the  erroneous  instructions  upon  vitally  material  is- 
sues in  the  case,  and  where  the  verdict  was  in  conformity 
with  the  charge  of  the  court,  taken  as  a  whole.  But  it 
must  be  confessed  that  some  of  the  authorities  cited  hold 
that  the  jury  have  a  right  to  disregard  erroneous  instruc- 
tions of  the  court,  and  that  the  verdict  should  not  be  set 
aside  in  such  cases  if  in  accord  with  the  correct  law.  *  *  * 
But  let  it  be  conceded  that  there  is  a  conflict  of  authorities 
upon  the  question  under  discussion,  or  let  us  suppose  that  it: 
is  a  new  question,  without  any  adjudications  or  authority 
in  either  event;  what  course  should  this  court  pursue?  It 
has  always  been  held  in  this  jurisdiction  that  it  was  the  sole 
province  of  the  jury  to  determine  questions  of  fact.  It 
has  been  uniformly  held  that  it  was  error  for  the  court  to 
invade  this  special  province  of  the  jury  by  even  comment- 
ing on  the  evidence.  State  v.  Sullivan^  9  Mont.  174,  22 
Pac.  1088,  and  authorities  cited.  Our  system  of  practice 
is  certainly  based  upon  the  theory  that  it  is  the  province 
of  the  jury  to  determine  facts,  and  that  of  the  court  to  de- 
termine and  declare  the  law  in  all  cases,  except  in  prosecu- 
tions for  libel.  'The  jury,  under  the  direction  of  the  court, 
shall  determine  the  law  and  the  facts.'  State  Const,  art. 
.3,  section  30.  From  this  constitutional  clause  it  seems 
plain  that  the  jury  have  no  right  to  determine  the  law  in 
any  other  case.  ' Expressio  unius  est  exclusio  alterius/ 
This  is  the  first  time  it  has  been  seriously  contended  in  this 
court  that  the  jury  have  the  right  to  determine  the  law  in 
an  ordinary  suit  at  law  and  to  absolutely  disregard  the  in- 
structions of  the  court  on  the  ground  that,  in  the  oiVmion 
of  the  jury,  the  instructions  of  the  court  are  erroneous.    If 


Sec.  6]  New  Trials  701 

the  contention  of  tlie  appellant  is  to  be  upheld,  what  may 
we  not  anticipate  as  the  result  in  the  administration  of  the 
law  in  this  state?  If  the  jury  may  rightfully  invade  the 
l^rovince  of  the  court,  why  may  not  the  court  retaliate  by 
invading  the  province  of  the  jury  in  determining  questions 
of  fact?  As  counsel  for  the  respondent  suggest,  if  the  con- 
tention of  appellant  is  correct,  then  logically  there  is  an 
appeal  in  all  cases  upon  questions  of  law  from  the  trial 
court  to  the  jury.  And  as  counsel  for  respondent  further 
suggest  in  their  argument,  if  the  jury  may  determine  the 
law,  an  attorney  arguing  the  case  may  say  to  the  jury: 
'The  court  will  charge  you  that  the  law  is  so  and  so,  but  I 
say  to  you  the  court  is  wrong.  You,  the  jury,  are  the 
hidges  of  the  law,  and  may  determine  it  for  yourselves.' 
Would  any  court  permit  such  an  argument  to  a  jury?  Cer- 
tainly not.  But,  if  the  jury  are  the  judges  of  the  law,  why 
should  a  court  prohibit  such  an  argument  to  them?  If  a 
juror  should  state  upon  his  voir  dire  that  he  would  not  be 
ii'overned  by  the  law  as  declared  by  the  court,  if  he  thought 
ihe  instructions  erroneous,  nobody  would  doubt  that  he 
would  not  be  permitted  to  sit  in  the  case.  Yet,  if  he  has 
the  right  as  a  juror  to  determine  the  law,  we  do  not  see 
why  he  should  be  challenged  for  asserting  that  right.  If 
^he  contention  of  appellant  is  correct,  the  time  of  this  court 
in  hearing  future  appeals  will  be  devoted  to  determining 
whether  the  court  or  the  jury  were  right  in  their  views  of 
the  law  in  the  trial  of  the  cause  in  the  lower  court.  Author- 
ity, or  no  authority,  we  cannot  give  our  sanction  to  a  prac- 
tice that  would  lead  to  such  results.  Such  a  course  would 
ultimately  result  in  overturning  our  system  of  keeping 
separate  and  distinct  the  powers  and  duties  of  the  courts 
and  juries,  confining  each  to  its  own  proper  province,  in  the 
degradation  of  the  courts,  and  confusion  and  chaos  in  the 
administration  of  the  law." 

And  in  the  case  of  Einerson  v.  County  of  Santa  Clara, 
40  Cai.  543,  the  court,  in  passing  upon  a  similar  question, 
said:  ''It  matters  not  if  the  instruction  disobeyed  be  itself 
erroneous  in  point  of  law,  it  is  nevertheless  binding  upon 
the  jury  who  can  no  more  be  permitted  to  look  beyond  the 
instructions  of  the  court  to  ascertain  the  law  than  they 


702  Trial  Pkacticb  [Chap.  17 

would  be  allowed  to  go  outside  of  the  evidence  to  find  the 
facts  of  the  case." 

And  in  the  case  of  Barton  v.  Sliull,  62  Neb.  570,  87  N.  W. 
322,  the  Supreme  Court  in  passing  upon  a  similar  question, 
said:  ''Without  at  the  present  time  discussing  the  correct- 
ness of  the  instructions,  the  rule  is  that  it  is  the  duty  of  the 
jury  in  all  cases  to  follow  the  instructions  given  them  by 
the  court  whether  correct  or  not ;  and,  if  they  fail  to  do  so, 
the  verdict  will  be  deemed  to  be  contrary  to  law,  and  should 
be  set  aside  and  a  new  trial  ordered.  The  reasons  for  the 
rule  are  obvious.  Any  other  would  lead  to  endless  con- 
fusion sanctioning  utter  disregard  of  the  court's  opinion 
of  the  law  applicable  to  the  pleadings  and  the  evidence,  and 
render  its  instructions  entirely  impotent,  except  when  will- 
ed otherwise  by  the  jury.  A  refusal  or  failure  to  follow 
the  instructions  of  the  court  is  sufficient  ground  for  setting 
asid-e  the  verdict  and  granting  a  new  trial." 

And  in  Way  v.  Chicago  d  Rock  Island  Bailway  Co.,  73 
Towa,  463,  35  N.  W.  525,  the  court  said:  ''We  will  not  in- 
quire whether  the  instruction  is  correct  or  not.     It  was 
given  as  the  law  of  the  case,  and  should  have  been  respected 
by  the  jury.     A  verdict  which  has  been  found  against  the 
instructions  of  a  court  should  be  set  aside,  even  though  the 
disregarded  instructions   should  be   erroneous."     To   the 
^ame  effect  are  Bunt  en  v.  Mutual  Ins.  Co.,  4  Bosw.  (N.  Y.) 
254;  Flemming  v.  Marine  Ins.  Co.,  4  Whart.  (Pa.)  59,  33 
Am.  Dec.  33;  Dent  v.  Bryce,  16  S.  C.  1;  Fleming  v.  L.  &  N. 
R.  R.  Co.,  148  Ala.  527,  41  South.  683;  Wood  v.  Cox,  84 
Rnglish  Common  Law,  280.    In  this  case  the  Chief  Justice, 
Sir  John  Jervis,   said:     "Without  discussing  the  merits 
of  the  case  or  the  propriety  of  the  directions  of  the  pre- 
siding judge,  I  think  the  verdict  cannot  be  sustained.    The 
undersheriff  directs  the  jury  to  find  for  the  plaintiff,  telling 
them  there  is  no  evidence  to  support  the  plea,  and  they 
persist  in  finding  for  the  defendant.     There  must  be  a  new 
trial."     The  authorities  which  we  have  cited  are  represen- 
tative cases  in  their  respective  jurisdictions  bearing  upon 
this  question.    As  opposed  to  the  views  therein  expressed, 
the  Supreme  Courts  of  Texas,  Georgia,  and  Mississippi, 
as  above  indicated,  have  taken  a  contrary  view,  but  the 
reason  for  the  rule  announced  in  these  several  cases  cited 


Sec.  7]  New  Trials  703 

by  counsel  for  appellee  in  support  of  his  contention  is  far 
from  satisfactory,  and  the  conclusion  reached  is  opposed 
to  both  the  theory  and  spirit  upon  which  our  system  of 
jurisprudence  is  based,  and  is  overwhelmed  by  the  weight 
of  authority  in  other  jurisdictions. 

After  a  full  consideration,  we  adhere  to  the  rule  infer- 
entially  declared  in  Sjuith  v.  Morrison,  *  *  *  and  subse- 
quently followed  by  the  superior  court  in  the  several  opin- 
ions to  which  we  have  referred,  and  by  this  court  in  the 
later  case  of  Curran  v.  Stein,  that  it  is  the  duty  of  the  trial 
jury  to  "conform  to  the  instructions  of  the  court  upon 
matters  of  law."  In  other  words,  that  it  is  the  exclusive 
province  of  the  court  to  determine  questions  of  law,  and 
that  of  the  jury  only  to  apply  the  facts  proven  to  the 
law  as  given  by  the  court;  and,  when  it  is  stated  that  the 
verdict  is  contrary  to  "law,"  reference  is  had  to  the  law 
as  given  by  the  court,  and  not  as  it  might  or  should  have 
been  given. 


Section-  7.    Newly  Discovered  Evidence. 

(a)     Cumulative  Evidence. 

WINFIELD   BUILDING   AND    LOAN   ASSOCIATION 
V.  McMULLEN. 

Supreme  Court  of  Kansas.    1898. 

59  Kansas,  493. 

Johnston,  J.  J.  F.  McMullen  was  elected  secretary  of 
the  Winfield  Building  and  Loan  Association,  and  for  the 
faithful  performance  of  his  duties  he  executed  a  bond  in  the 
sum  of  two  thousand  dollars,  which  was  signed  by  J.  C.  Mc- 
Mullen as  surety.  It  was  claimed  that  the  secretary  mis- 
appropriated $2,201.75  of  the  money  of  the  Association, 
and  an  action  was  commenced  on  the  bond.  Among  other 
defenses  alleged,  J.  C.  McMullen,  the  surety,  denied  the 
execution  of  the  bond,  and,  upon  testimony  offered,  the 


704:  Trial  Practice  [Chap.  17 

jury  in  answer  to  a  special  question  found  that  he  did  not 
execute  it,  and  a  general  verdict  was  returned  and  judg- 
ment rendered  in  his  favor.  Afterward,  the  Association 
filed  its  petition,  under  the  statute,  asking  the  court  to  set 
aside  the  verdict  and  judgment  on  the  ground  of  newly- 
discovered  evidence.  The  bond  had  been  lost  and  was 
therefore  not  produced  at  the  trial.  It  was  afterward 
found,  and  it  constituted  the  newly-discovered  evidence  up- 
on which  a  new  trial  was  asked.  On  the  application,  testi- 
mony was  offered  as  to  the  loss  of  the  bond  and  the  dili- 
gence exercised  to  secure  it  before  the  trial  was  had.  After 
a  full  hearing,  the  District  Court  granted  a  new  trial  and 
set  aside  the  verdict  and  judgment  theretofore  rendered. 
This  order  was  reversed  by  the  Court  of  Appeals  (46  Pac. 
410),  and  its  ruling  is  here  for  review. 

The  Court  of  Appeals  held  that  the  testimony  was  new- 
ly-discovered evidence,  that  it  was  material,  and  that  due 
diligence  had  been  used  to  obtain  it,  but  that  it  was  cumu- 
lative in  character;  and  on  this  ground  the  reversal  was 
based.  That  the  bond  was  newly  discovered  evidence  is 
"lear.  It  was  lost  and  is  found.  It  was  very  material. 
Prom  the  fact  that  its  execution  was  denied.  When  pro- 
duced, and  submitted  to  the  inspection  of  the  jury,  they 
could  determine  for  themselves,  from  it  and  from  the  testi- 
mony offered  in  connection  with  it,  as  to  the  genuineness 
of  the  defendant's  signature  thereon.  Whether  the  surety 
signed  the  bond  was  the  principal  fact  to  be  investigated; 
and  when  the  jury  found  that  he  did  not  sign  it,  they  were 
not  required,  under  the  instructions  of  the  court,  to  pursue 
their  investigations  further,  nor  to  determine  anything  as 
to  the  other  defenses  which  were  set  up.  It  was  therefore 
a  controlling  issue  in  the  case;  and  with  respect  to  it,  the 
new  testimony  was  of  the  utmost  importance.  The  District 
Court  and  the  Court  of  Appeals  therefore  correctly  ruled 
that  the  evidence  was  newly  discovered,  that  it  was  ma- 
terial, and  further  that  due  diligence  had  been  used  to  ob- 
tain and  produce  it  at  the  trial.  Was  it  cumulative,  and 
did  the  trial  court  err  in  granting  a  new  trial? 

The  general  rule  is  that  newly-discovered  evidence 
which  is  merely  cumulative  is  not  sufficient  ground  for  a 
new  trial ;  but  we  are  clearly  of  the  opinion  that  the  pro- 


Sec.  7]  New  Tkials  70 j 

posed  testimony  cannot  be  regarded  as  cumulative  mere- 
ly. "Cumulative  evidence  is  evidence  of  the  same  kind  to 
the  same  point."  1  Greenleaf  on  Evidence,  §  2.  The 
fact  that  the  testimony  may  tend  to  prove  the  same  issue 
upon  which  proof  was  offered  on  the  trial,  is  not  enough 
to  make  it  cumulative ;  and  whether  or  not  it  is  cumulative 
is  to  be  determined  from  its  kind  and  character,  rather 
than  from  its  effect.  On  the  trial,  testimony  was  offered 
that  a  bond  was  executed,  and  that  one  of  th,e  signatures 
thereon  was  that  of  the  surety.  This  was  merely  the 
opinion  of  experts,  which,  in  character,  is  distinctly  dif- 
ferent from  the  instrument  itself  upon  which  the  action 
was  brought.  Instead  of  taking  the  judgment  or  relying 
on  the  opinion  of  others,  the  jury  can  inspect  the  bond, 
and,  from  the  inspection  and  by  comparison  of  the  signa- 
tures thereon  with  other  signatures  admitted  or  proved 
to  be  genuine,  determine  for  themselves  the  point  in  con- 
troversy. It  is  a  very  material  item  of  evidence,  on  the 
turning-point  in  the  case,  wholly  dissimilar  in  character 
from  that  produced  on  the  trial;  and  therefore  cannot  be 
classed  as  cumulative.  The  State  v.  Tyson,  56  Kan.  686, 
44  Pac.  609;  Cairns  v.  Keith,  50  Minn.  32;  Knowles  v. 
Northrop,  4  Atl.  269;  Protection  Life  Ins.  Co.  v.  Dill,  91 
111.  174;  Wilday  v.  McConnell,  63  111.  278;  Guyot  v.  Butts, 
4  Wend.  581 ;  Piatt  v.  Munroe,  34  Barb.  291 ;  Wayt  v.  B. 

C.  R.  &  N.  R.  Co.,  45  la.  218. 

********** 

The  judgment  of  the  Court  of  Appeals  will  be  reversed 
and  the  judgment  of  the  District  Court  will  be  affirmed. 


WALLER  V.  GRAVES. 

Supreme  Court  of  Errors  of  Connecticut.    1850. 

20  Connecticut,  305. 

This  was  a  petition  for  a  new  trial  of  a  cause,  which  had 
previously  come  before  this  court.  Graves  v.  Waller,  19 
Conn.  R.  90.    For  the  nature  of  the  action  and  the  decla- 

T.  P.^5 


706  Trial  Practice  [Chap.  17 

ration,  it  is  sufficient,  for  the  present  purpose,  to  refer  to 
the  report  of  that  case. 

On  the  trial  of  the  cause  to  the  jury,  it  became  a  ma- 
terial question,  and  one  on  which  the  determination  of 
the  cause  depended,  whether  the  words  "rapacious  credi- 
tor," were  in  the  original  manuscript,  when  it  was  handed 
to  the  editor  of  the  New  Milford  Republican,  the  news- 
paper in  which  it  was  alleged  to  have  been  published,  or 
were  inserted  in  the  manuscript  or  published  in  the  news- 
paper, by  some  person,  unknown  to  the  petitioner,  and 
without  his  knowledge;  the  plaintiff  in  that  suit  claiming 
the  former  branch  of  the  alternative,  and  the  defendant 
the  latter. 

The  plaintif[  introduced  evidence  tending  to  prove  his 
claim.  The  defendant  on  the  other  hand,  introduced  Syl- 
vanus  Merwin,  as  a  witness,  who  testified,  that  he  drew 
up  in  part  the  certificate  on  which  the  action  was  founded ; 
that  he  asked  Waller  if  he  would  sign  it?  That  Waller 
asked  him  what  it  was?  that  he  then  read  it  over  to  him; 
that  he  made  no  objection  to  signing  it,  and  said  it  was 
true;  that  the  words  "rapacious  creditor,"  were  not  in 
it ;  that  he  did  not  tell  Waller,  that  he  intended  to  publish 
it;  and  that  he,  Merwin,  sent  it  to  the  publisher  of  the 
news-paper,  but  did  not  authorize  the  continuance  of  it 
the  second  week;  that  he  saw  the  piece  soon  after  it  was 
published,  and  discovered  that  it  was  different  from  the 
manuscript  when  sent  to  the  publisher. 

On  the  hearing  of  the  present  petition  also,  Merwin  was 
a  witness,  and  testified,  that  he  did  not  authorize  any  one 
to  make  any  other  alterations  in  the  manuscript  than  such 
as  were  necessary  to  make  its  language  grammatical. 

The  deposition  of  Averill  as  to  the  alteration  of  the 
original  manuscript,  was  annexed,  and  made  part  of  the 
finding  of  the  court  in  the  case.  In  that  deposition,  the 
deponent  testified,  that  being  publisher  of  a  weekly  news- 
paper in  New-Milford,  entitled  The  New-Milford  Republi- 
can, he  published  in  that  paper,  in  April  or  May  1846,  a 
writing  signed  by  Homer  Waller  of  New-Milford,  reflect- 
ing somewhat  severely  on  the  character  and  person  of 
Jedediah  Graves,  father-in-law  of  Sylvanus  Merwin;  that 


Sec.  7]  New  Trials  707 

this  writing  came  to  the  deponent's  office  in  the  hand- 
writing of  said  Merwin;  that  the  deponent  was  instructed, 
by  a  private  note  from  Merwin,  to  make  such  alterations 
in  the  body  of  the  writing,  as  he  saw  fit,  to  make  it  read 
grammatically,  which  he  did  accordingly;  that  the  words 
''rapacious  creditor,"  and  some  others,  were  inserted  by 
the  deponent,  without  the  consent  or  knowledge  of  Wal- 
ler, or  even  his  approbation;  and  that  the  substance  of 
the  whole  writing  was  materially  changed  from  what  it 
was  when  it  was  received  by  him  for  publication,  without 
authority  from  Waller  for  so  doing. 

The  case  was  reserved  for  the  advice  of  this  court. 

Church,  Ch.  J.  The  most  aggravated  portion  of  the 
libel  complained  of,  is  that  by  which  the  plaintiff.  Graves, 
was  exposed  to  public  reproach  and  contempt,  as  having, 
in  the  character  and  spirit  of  a  rapacious  creditor  shame- 
fully abused  Sylvanus  Merwin,  his  son-in-law,  and  his 
wife  and  children. 

This  charge  was  libellous,  and,  in  a  good  degree,  gave 
sting  and  character  to  the  whole  publication,  and  was  the 
chief  ground  of  the  plaintiff's  claim  to  the  recovery  of 
damages  at  the  trial,  and  upon  which  the  issue  of  the 
cause  was  supposed  much  to  depend,  as  we  infer  from  the 
allegations  in  this  petition,  and  found  by  the  court  to  be 
true. 

The  ground  of  this  application  for  a  new  trial,  is  that 
from  evidence  newly  discovered,  the  petitioner  Waller,  can 
prove,  that  the  language  ''rapacious  creditor/'  was  never 
used  by  him,  in  composing  the  article,  nor  approved  by 
him,  but  without  his  knowledge,  was  inserted  by  the  editor 
of  the  newspaper  in  which  it  was  published,  and  for  which 
unauthorized  act  he  ought  not  to  be  made  responsible. 
If  such  is  the  real  truth,  and  if  the  jury  had  so  believed 
upon  the  trial,  we  think  the  result  would  and  should  have 
been  a  different  one. 

There  is,  and  there  should  be,  reluctance  in  courts  to 
disturb  the  verdicts  of  juries,  unless  in  cases  where  it  is 
most  manifest,  that  either  the  law  has  been  perverted  or 
mistaken,  or  that  the  losing  party  has  not  had  a  full  and 
impartial  hearing.  It  is  easy  for  a  party  to  claim  the  dis- 
covery of  new  evidence,  and  it  is  hard  that  his  opponent 


708  Teial  Peactice  [Chap.  17 

should  be  compelled  to  submit  to  the  expense  of  a  second 
trial,  when  such  claim  is  either  unfounded,  or  the  result 
of  negligence  in  the  first  preparation.  We  feel  all  this 
in  the  present  case,  and  with  much  hesitation  have  formed 

the  opinion  now  declared. 

********** 

So  if  the  evidence  now  claimed  to  be  newly  discovered, 
is  merely  cumulative  evidence,  we  cannot  grant  a  new 
trial,  unless  the  effect  of  it  will  be  to  render  clear  and  posi- 
tive, that  which  was  before  equivocal  and  uncertain. 

By  cumulative  evidence  is  meant  additional  evidence  of 
the  same  general  character,  to  the  same  fact  or  point 
which  was  the  subject  of  proof  before.  Watson  v.  Dela- 
field,  2  Gaines,  224;  Reed  v.  McGreiv,  1  Harmond,  386; 
Smith  V.  Brush,  8  Johns.  R.  84;  Pike  v.  Evans,  15  Johns. 
R.  210;  The  People  v.  The  Superior  Court,  5  Wend.  114; 
S.  C.  10  Wend.  285;  Guyot  v.  Butts,  4  Wend.  579;  Gard- 
ner V.  Mitchell,  6  Pick.  114;  Chatfield  v.  Lathrop,  id.  417; 
Parker  v.  Hardij,  24  Pick.  246. 

The  fact  in  dispute,  on  the  trial  of  this  cause,  was, 
whether  the  words,  "rapacious  creditor,"  were  a  part  of 
the  libellous  writing,  when  it  was  signed  by  Waller.  That 
they  were  not,  was  the  most  material  ground  of  defence; 
and  this  ground  was  supported,  by  the  testimony  of  Mer- 
win  alone,  who  wrote  the  article  originally,  and  who  swore 
that  these  words  were  not  then  in  it. 

From  some  of  the  cases  on  this  subject,  it  may  perhaps 
be  inferred,  that  courts  have  supposed  all  additional  evi- 
dence to  be  cumulative  merely,  which  conduced  to  estab- 
lish the  same  ground  of  claim  or  defence  before  relied  up- 
on, and  that  none  would  be  available,  for  a  new  trial,  un- 
less it  disclosed  or  established  some  new  ground.  But  this 
does  not  seem  to  us  to  be  the  true  rule,  as  recognized  in 
the  best  considered  cases. 

There  are  often  various  distinct  and  independent  facts 
going  to  establish  the  same  ground,  on  the  same  issue. 
Evidence  is  cumulative  which  merely  multiplies  witnesses 
to  any  one  or  more  of  these  facts  before  investigated,  or 
only  adds  other  circumstances  of  the  same  general  charac- 
ter. But  that  evidence  which  brings  to  light  some  new 
and  independent  truth  of  a  different  character,  although 


Sec.  7]  New  Trials  709 

it  tends  to  prove  the  same  proposition  or  ground  of  claim 
before  insisted  on,  is  not  cumulative  within  the  true  mean- 
ing of  the  rule  on  this  subject;  as  in  the  present  case, 
Merwin  testified  only,  that  the  libel,  as  printed  and  pub- 
lished, was  not  like  the  paper  written  by  him  and  signed 
by  Waller,  in  the  particular  referred  to.  But  now  appears 
a  new  fact,  entirely  independent  of  the  testimony  of  Mer- 
win— one  which  did  not  exist,  at  the  time  Merwin  speaks 
of;  which  is,  that  another  person,  without  the  knowledge  or 
consent  of  either  Waller  or  Merwin,  inserted  the  objec- 
tionable words  into  the  article,  which  appeared  in  the  news- 
paper. 

Suppose  a  question  on  trial  to  be,  whether  the  note  of  a 
deceased  person  has  been  paid,  and  witnesses  have  been 
introduced  testifying  to  various  facts  conducing  to  prove 
such  payment,  and  after  a  verdict  for  the  plaintiff,  the 
executor  should  discover  a  receipt  or  discharge  in  full,  or 
had  discovered  that  he  could  prove  the  deliberate  confes- 
sion of  the  plaintiff  of  the  payment  of  the  note.  There 
could  be  no  question,  in  such  a  case,  but  a  new  trial  should 
be  granted,  although  the  new  facts  go  to  prove  the  former 
ground  of  defence. 

We  shall  therefore  advise  a  new  trial. 

In  this  opinion,  Waite,  Stores,  and  Hinmaist,  Js.,  con- 
curred. 

Ellsworth,  J.  concurred  in  the  principles  advanced  in 
such  opinion,  but  did  not  think  them  applicable  to  the 
present  case;  and  for  that  reason  would  not  grant  a  new 
trial. 

New  trial  to  he  granted. 


710  Trial  Peactice  [Chap.  17 

GERMAN  V.  MAQUOKETA   SAVINGS  BANK. 

Supreme  Court  of  loiva.    1874, 
38  Iowa,  368. 

Plaintiff  claims  $1,000,  alleged  to  be  due  on  account  of 
business  transacted  with  defendant  in  the  years  1872  and 
1873.  The  defendant  denies  that  any  balance  is  due  plain- 
tiff.    Trial  to  the  court. 

Plaintiff  testified  in  substance  that  on  or  about  Nov. 
25th,  1872,  he  gave  defendant  two  drafts,  each  for  $1,000, 
on  Vaughn  Bros.,  Chicago. 

That  one  of  these  drafts  was  forwarded  to  Chicago  and 
paid.  That  the  other,  under  his  direction,  was  retained; 
that  he  gave  checks  against  this  draft  to  the  amount  of 
$980.93,  which  was  charged  to  his  account;  and  that  after- 
ward he  settled  the  account  by  turning  out  notes  which 
the  bank  discounted,  and  this  draft  was  delivered  up  to 
him  and  destroyed. 

The  defendant's  cashier  and  vice-president  both  testi- 
'  ed  that  the  draft  sent  to  Chicago  was  drawn  on  the  23d 
of  November,  and  that  the  bank  paid  over  the  counter 
therefor  $1,000  less  exchange. 

The  plaintiff,  in  rebutt#l,  testified  that  it  was  possible 
the  draft  paid  by  Vaughn  Bros,  was  drawn  on  the  23d,  but 
that  he  did  not,  on  that  day  or  any  other  day,  receive  from 
any  officer  of  the  bank  $1,000  in  cash  over  the  counter  of 
the  defendant  on  that  draft,  or  upon  any  draft  in  contro- 
versy in  this  suit;  and  that  no  officer  of  the  bank  ever 
claimed  to  him  before  the  day  of  trial  that  they  had  paid 
cash  over  the  counter  of  the  bank  on  any  draft  in  contro- 
versy. 

Upon  the  testimony  introduced,  the  court  rendered  judg- 
ment for  the  defendant. 

Plaintiff  thereupon  moved  for  a  new  trial  on  the  ground 
of  surprise  and  of  newly  discovered  evidence. 

The  court  overruled  the  motion  on  the  ground  that  the 
newly  discovered  evidence  was  cumulative.  Plaintiff  ap- 
peals. 

The  further  material  facts  are  stated  in  the  opinion. 


Sec.  7]  New  Trials  711 

Day,  J. — I.  That  a  new  trial  will  not  be  granted  because 
of  the  discovery  of  evidence,  which  is  merely  cumulative, 
is  a  general  doctrine  of  the  courts,  and  has  been  frequently 
recognized  in  this  state.  See  1  Graham  and  Waterman  on 
New  Trials,  486-495,  and  cases  cited;  Alger  v.  Merritt,  16 
Iowa,  121;  Sturgeon  v.  Ferron,  14  Iowa,  160;  Manix  v. 
Malony,  7  Iowa,  81. 

It  is  exceedingly  difficult,  if  not  impossible,  to  furnish  a 
general  definition  of  cumulative  evidence,  which  in  a  given 
case  will  materially  aid  in  determining  whether  particular 
testimony  offered  falls  within  or  without  that  class. 

In  1  Greenleaf  on  Evidence,  <^  2,  it  is  said:  "Cumulative 
evidence  is  e\ddence  of  the  same  kind,  to  the  same  point. 
Thus,  if  a  fact  is  attempted  to  be  proved  by  the  verbal  ad- 
mission of  the  party,  evidence  of  another  admission  of  the 
same  fact  is  cumulative."  And  in  Alger  v.  Merritt,  16 
Iowa,  121,  (127),  it  is  said:  "If  the  new  evidence  be 
specifically  distinct  and  bear  upon  the  issue,  though  it 
may  be  intimately  connected  with  some  parts  of  the  testi- 
mony at  the  trial,  it  is  not  cumulative."  Citing  1  G.  & 
W.  on  New  Trials.  Ma:*y  of  the  cases  seem  to  hold  that 
evidence  is  cumulative  if  it  goes  to  establish  the  issue 
which  was  principally  controverted  upon  the  former  trial. 
These  cases,  we  think,  lay  down  too  broad  a  rule.  The 
evidence  may  tend  to  establish  the  same  issue,  and  yet  be 
so  unlike  and  distinct  from  any  testimony  before  produced, 
as  to  furnish  no  protext  for  declaring  it  cumulative.  The 
case  of  Gardner  v.  Mitchell,  6  Pick.  114,  furnishes  an  apt 
illustration. 

In  that  case  the  plaintiff  recovered  a  verdict  for  $5,337 
on  a  breach  of  warranty  as  to  the  quality  of  51,000  gallons 
of  oil  sold  him  by  defendant.  The  defendant  moved  for 
a  new  trial  on  the  ground  of  newly  discovered  evidence  by 
which  he  could  prove  declarations  of  the  plaintiff  that  the 
oil  was  as  good  as  expected.  It  was  held  that  this  was  a 
new  fact  not  before  in  the  case,  and  a  new  trial  was  grant- 
ed. The  same  principle  was  recognized  in  Guyot  v.  Butts, 
4  Wendell,  579. 

In  this  case  plaintiff  states  in  his  motion  for  new  trial, 
"that  he  can  fully  prove  by  the  testimony  of  William  Phil- 
lips of  Clinton  county,  Iowa,  that  on  the  23d  day  of  No- 


712  Teial  Peactice  [Chap.  17 

vember,  A.  D.  1872,  this  plaintiff  drew  a  draft  on  Vaughn 
Bros,  of  Chicago,  for  $1,000,  at  the  bank  of  defendant; 
that  said  witness  was  with  plaintiff  at  the  time,  and  that 
he,  plaintiff  did  not  receive  cash  for  the  same,  but  did 
check  against  said  draft  to  the  amount  of  $500,  and  plain- 
tiff says  he  can  show  he  drew  no  other  draft  that  day. 

Plaintiff  also  states  he  can  prove  substantially  the  same 
by  Abram  Gish. 

Now,  whilst  this  testimony  tends  to  the  establishment  of 
the  same  fact  as  that  testified  to  on  the  former  trial  by 
plaintiff,  to-wit:  that  $1,000  was  not  paid  when  the  draft 
was  drawn,  it  tends  to  establish  it  in  part,  as  an  inference 
from  a  new  fact,  not  introduced  upon  the  former  trial, 
viz:  that  a  check  was  drawn  against  the  draft  to  the 
amount  of  $500. 

It  seems  to  us,  therefore,  that  the  case  falls  within  the 
principle  of  Gardner  v.  Mitchell,  6  Pick.  114,  and  Guyot  v. 
Butts,  4  Wendell,  579,  and  that  the  evidence  newly  dis- 
covered was  something  more  than  merely  cumulative.  See 
1  G.  &  W.  on  New  Trials,  490-493,  and  cases  cited;  3  Id. 
1048,  and  cases  cited. 

We  think  the  motion  for  a  new  trial  should  have  been 
sustained. 

Reversed. 


BROWN  V.  WHEELER. 

Supreme  Court  of  Kansas.    1901. 

62  Kansas,  676. 

Pollock,  J.  *  *  • 

********** 

Is  the  evidence  cumulative?  Does  the  fact  that  the  ad- 
mission made  by  Van  A^oorhis  Brown  in  this  letter  is  in 
writing,  while  his  admissions  shown  upon  the  trial  were 
oral,  take  it  out  of  the  rule  against  cumulative  evidence? 
We   think   not.     Cumulative   evidence   is   evidence   of  the 


Sec.  7]  New  Trials  713 

same  kind  to  the  same  point.  Here  the  evidence  offered 
is  an  admission.  Oral  admissions  of  Brown  of  identical 
import  were  shown  by  witnesses  for  the  defense  upon  the 
trial.  All  are  admissions ;  hence,  they  are  of  the  same  kind 
of  evidence.  All  go  to  the  same  point — to  show  that  Van 
Voorhis  Brown  was  not  the  owner  of  the  property.  The 
fact  that  the  admission  here  made  is  in  writing  may  have 
made  it  stronger,  but  does  not  change  its  nature  as  evi- 
dence; it  is  cumulative.  {Wisconsin  Central  R.  R.  Co.  v. 
Ross,  142  111.  9,  31  N.  E.  412;  Klein  v.  Gibson,  2  S.  W. 
(Ky.)  116;  Cox  V.  Harvey,  53  Ind.  174;  The  Town  of  Man- 
son  V.  Ware,  63  Iowa,  345,  19  N.  W.  275;  Wayne  v.  New- 
man's Adm'r,  Etc.,  75  Va.  811;  Wall  v.  Trainer,  16  Nev. 
131;  Glidden  v.  Dunlap,  28  Me.  379.)  *  *  * 


LAYMAN    V.    MINNEAPOLIS    STREET    RAILWAY 

COMPANY. 

Supreme  Court  of  Minnesota.    1896. 

66  Minnesota,  452. 

Staet,  C.  J.  The  plaintiff's  intestate  died  as  a  result  of 
a  collision  between  a  wood  cart,  which  he  was  driving,  and 
one  of  the  defendant's  street  cars.  Both  were  going  in  the 
same  direction.  The  main  issues  litigated  on  the  trial  of 
the  action,  which  was  for  the  recovery  of  damages  on  ac- 
count of  his  death,  were  the  negligence  of  the  defendant  and 
the  contributory  negligence  of  the  deceased.  There  was  a 
verdict  for  the  defendant.  The  trial  court  granted  the 
plaintiff's  motion  for  a  new  trial  solely  on  the  ground  of 
newly-discovered  evidence,  and  defendant  appealed  from 
the  order. 

The  verdict  was  general  only,  hence  the  record  does  not 
disclose  the  ground  upon  which  the  jury  based  the  verdict. 
The  trial  court  stated,  in  its  memorandum,  that  evidently 
the  jury  found  that  the  deceased  was  guilty  of  contributory 
negligence,  and  that  such  finding  was  the  basis  of  the  ver- 
dict. It  cannot  be  so  assumed,  although  the  evidence  ren- 
ders it  more  probable  that  such  was  the  case  than  that  the 


714  Trial  Practice  [Chap.  17 

jury  found  that  the  defendant  was  not  guilty  of  negligence 
in  the  premises.  These  suggestions  are  made  with  reference 
to  the  character  of  the  newly-discovered  evidence,  which 
tends  to  show  that  the  deceased,  as  he  started  to  turn  his 
team  upon  the  car  tracks  for  the  purpose  of  avoiding  a  pile 
of  lumber  which  had  been  placed  near  the  curb  of  the  street 
along  which  he  was  driving  his  cart,  looked  back  in  the  di- 
rection he  had  been  coming,  and  that  there  was  no  car  then 
in  sight.  It  is  undisputed  that  his  view,  in  the  direction 
from  which  the  car  came,  was  unobstructed  for  at  least 
three  blocks.  The  defendant  claims,  that  this  evidence  is 
simply  cumulative,  that  it  is  false,  and  would  not  change  the 
verdict  on  another  trial. 

The  granting  or  denying  of  a  motion  for  a  new  trial  on 
the  ground  of  newly-discovered  evidence  is  a  matter  rest- 
ing largely  in  the  discretion  of  the  trial  court  and  its  order 
will  not  be  reversed  on  appeal  unless  it  is  made  to  appear 
that  the  order  violated  some  legal  right  of  appellant,  or 
was  an  abuse  of  discretion ;  the  presumption  being  that  the 
discretion  was  properly  exercised.  Lampsen  v.  Brander, 
28  Minn.  526,  11  N.  W.  94.  The  question,  then,  is  not 
whether  the  trial  court  might  have  properly  denied  the  mo- 
tion, but  whether  the  granting  of  it  was  an  abuse  of  its 
discretion  for  any  of  the  reasons  assigned  by  the  defendant. 
The  newly-discovered  evidence  was  not  cumulative,  within 
the  meaning  of  the  general  rule  that  a  new  trial  will  not  be 
granted  where  the  evidence  is  simplj^  cumulative.  Cumula- 
tive evidence,  as  the  term  is  here  used,  is  held  to  be  evi- 
dence which  speaks  to  facts  in  relation  to  which  there  wa« 
evidence  on  the  trial;  or,  in  other  words,  it  is  additional 
evidence  of  the  same  kind,  and  to  the  same  point,  as  that 
given  on  the  first  trial.  But  it  is  not  cumulative  if  it  relate 
to  distinct  and  independent  facts  of  a  different  character 
tending  to  establish  the  same  ground  of  claim  or  defense. 
ITil.  New  Trials,  501;  Nhiinger  v.  Knox,  8  Minn.  110  (140)  ; 
H  OS  ford  V.  Ttowe,  41  Minn.  245,  42  N.  W.  1018. 

On  the  trial  there  was  no  evidence  as  to  whether  the  do 
ceased  looked  to  see  if  a  car  was  ai)proaching  before  driv- 
ing upon  the  tracks.  The  new  evidence  directly  tends  to 
])rove  that  he  did  so  look.  This  is  a  fact  bearing  upon  the 
question  of  liis  contributory  negligence.  The  evidence, 
therefore,  is  material,  and  is  not  cumulatice.     The  credi- 


Sec.  7]  New  Trials  715 

bility  of  the  evidence,  and  whether  it  would  probably  change 
the  result  on  another  trial,  are  questions  peculiarly,  but  not 
exclusively,  for  the  trial  judge,  who  saw  the  witnesses, 
heard  their  testimony,  followed  the  course  of  the  trial,  noted 
the  claims  of  the  respective  parties,  and  whose  opportunity 
to  judge  of  the  credibility  of  the  newly-discovered  evidence, 
and  the  probable  effect  it  would  produce  on  another  trial, 
was  superior  to  our  own.  Our  conclusion,  from  a  consid- 
eration of  the  entire  evidence  given  on  the  trial,  is  that  the 
trial  court  did  not  abuse  its  discretion  in  granting  the  mo- 
tion for  a  new  trial. 

Order  affirmed. 


(b)     Impeaching  Evidence. 

BLAKE  V.  RHODE  ISLAND  COMPANY. 

Supreme  Court  of  Rhode  Island.    1911. 

32  Rhode  Island,  213. 

Johnson,  J.  This  is  an  action  of  the  case,  brought  by 
Lewis  A.  E.  Blake  against  the  Rhode  Island  Company,  to 
recover  damages  for  personal  injuries  allegad  to  have  been 
sustained  through  the  negligence  of  the  defendant  company 
in  the  operation  of  one  of  its  street  cars. 

On  the  29th  day  of  June,  1906,  the  plaintiff  was  driving 
an  ice  cart,  and  had  just  turned  with  said  cart  from  Patt 
street  into  East  avenue,  in  the  city  of  Pawtucket,  when  a 
car  of  the  defendant  company,  travelling  from  Providence 
toward  Pawtucket,  overtook  and  collided  with  said  ice  cart ; 
and  as  a  result  of  said  collision  the  ice  cart  was  overturned 
and  the  plaintiff  was  thrown  to  the  ground  and  injured. 

The  case  was  tried  before  a  justice  of  the  Superior  Court 
and  a  jury,  on  the  18th,  19th,  20th,  and  21st  days  of  October, 
1909,  and  resulted  in  a  verdict  for  the  plaintiff"  for  $9,082.50. 
Thereafter  the  defendant  duly  filed  a  motion  for  a  new  trial 
upon  the  grounds : 

**4,    That  said  defendant  has  discovered  new  and  ma- 


716  Trial  Practice  [Chap.  17 

terial  evidence  in  said  case  which  it  had  not  discovered  at 
the  time  of  the  trial  thereof,  and  which  it  could  not  with 
reasonable  diligence  have  discovered  at  any  time  previous 
to  the  trial  of  said  case,  as  by  affidavits  to  be  filed  in  court 
will  be  fully  set  forth,  said  affidavits  being  made  a  part  of 
this  motion." 

This  motion  was  heard  July  2,  1910,  by  the  justice  who 
presided  at  the  trial,  and  July  8,  1910,  a  rescript  was  filed 
denying  said  motion  on  all  grounds  except  that  of  exces- 
sive damages.  *  *  * 

********** 

The  case  is  now  before  this  court  on  *  *  *  two  bills  of 
exceptions. 

The  exceptions  pressed  by  the  defendant  are  the  fol- 
lowing, as  numbered  in  its  bill  of  exceptions : 

"25.  To  the  decision  of  said  court  denying  the  defend- 
ant's motion  for  a  new  trial  on  the  ground  of  newly  dis- 
covered evidence." 

********** 

The  twenty-fifth  exception  is  to  the  decision  of  the  court 
denying  the  defendant's  motion  for  a  new  trial  on  the 
ground  of  newly  discovered  evidence.  In  support  of  the 
motion  on  this  ground  several  affidavits  were  filed  covering 
three  conversations  alleged  to  have  been  had  with  the  mo- 
torman  Cook  on  March  21,  March  29,  and  April  1,  1910. 
The  affiants  state  that  in  said  conversations  said  Cook  ad- 
mitted that  he  testified  falsely  at  the  trial  of  the  case  and 
declared  that  he  had  lied  and  perjured  himself  on  the  wit- 
ness stand.  The  case  seems  to  come  clearly  within  the 
law  as  laid  down  by  this  court  in  Dexter  v.  Handy,  13  E. 
I.  474.  In  that  case  the  court,  Durfee,  C.  J.  (pp.  475-6), 
said:  ''The  ground  of  the  petition  is  that  these  witnesses, 
after  the  trial  was  over,  severally  admitted  that  their  testi- 
mony was  untrue.  The  affidavits  of  persons  who  profess  to 
have  heard  these  admissions  are  filed  in  support  of  the  pe- 
tition, but  no  affidavits  are  produced  from  the  witnesses 
themselves  either  admitting  that  their  testimony  was  false 
or  stating  anything  differently  from  their  testimony,  while, 
on  the  contrary,  one  of  the  witnesses,  and  he  the  most  im- 
portant, has  given  an  affidavit  denying  that  he  ever  made 
the  admissions.    If  another  trial  were  granted,  the  new 


Sec.  7]  New  Trials  717 

evidence  would  not  be  admissible  in  proof  of  the  issue  made 
by  the  defendant,  but  only  to  contradict  or  discredit  the 
witnesses  if  they  were  again  put  on  the  stand  by  the  plain 
tiff.  A  new  trial  is  seldom  granted  for  the  introduction 
of  newly  discovered  testimony,  which  goes  merely  to  im- 
peach the  witnesses  of  the  prevailing  party.  We  confess 
that  the  jDetition  does  not  commend  itself  to  our  minds.  If 
the  affidavits  introduced  by  the  petitioner  are  true,  the  wit- 
nesses have  confessed  themselves  perjurers ;  and  yet  the  pe- 
titioner, while  he  asks  us  to  grant  him  a  new  trial  on  that 
account  has  not,  so  far  as  appears,  taken  any  steps  to  have 
them  prosecuted.  It  has  been  decided  that  a  new  trial  on 
account  of  perjury  will  not  be  granted  until  after  the  per- 
jured witness  either  has  been  convicted  or  is  dead,  mere 
evidence  of  the  perjury,  or  even  an  indictment  for  it,  being 
deemed  insufficient.  Dyche  v.  Patton,  3  Jones  Eq.  332; 
Benfield  v.  Petrie,  3  Doug.  24;  Seeley  v.  Mayhew,  4  Bing. 
561 ;  Wheatly  v.  Edwards,  Lofft.  87.  Perhaps  the  rule  laid 
down  in  these  cases  may  be  too  strict  and  exacting  for  all 
circumstances,  but  it  is  obviously  founded  in  wise  policy. 
Certainly  the  talk  of  a  witness  after  trial  ought  not  general- 
ly to  weigh  against  the  sworn  testimony;  for  there  wouhl 
be  no  security  for  verdicts  if  without  peril  to  the  witnesses, 
they  were  liable  to  be  upset  by  such  talk.  The  best  evi- 
dence of  perjury  is  the  con\'iction  of  the  perjurer.  It  is 
against  the  petition  that  the  petitioner  can  find  no  prece- 
dent for  it.  There  is,  however,  precedent  against  it.  In 
CommomveaUh  v.  Randall,  Thacher  Cr.  Cas.  500,  it  was 
held  that  expressions  used  by  a  witness  after  a  trial,  con- 
tradicting or  denying  what  he  said  in  court,  are  not  ground 
for  setting  aside  the  verdict  and  for  granting  a  new  trial, 
but  are  evidence  to  convict  him  of  perjury.  'In  almost 
every  instance,'  said  the  court,  'it  would  be  easy  for  a  los- 
ing party  to  obtain  affidavits  of  that  description.'  We 
must,  therefore,  refuse  a  new  trial  on  this  ground."  The 
doctrine  of  this  case  has  been  followed  in  Boherfs  v.  Rob- 
erts, 19  R.  T.  349;  Jones  v.  N.  Y.,  N.  H.  cf-  H.  R.  R.  Co.,  20 
R.  I.  214;  Timony  v.  Casey,  20  R.  I.  257;  and  State  v.  Lynch, 
28  R.  I.  463.  In  the  last  mentioned  case,  the  court,  Doug- 
las, C.  J.  (p.  465),  said:  "On  examination  of  the  affida- 
vits submitted  we  find  that  they  do  not  divulge  any  evi- 
dence upon  the  merits  of  the  case,  but  are  confined  to  at- 


718  Teial  Practice  [Chap.  17 

tempts  to  discredit  the  principal  witness  of  the  crime.  They 
consist  mostly  of  statements  which  this  witness  is  said  to 
have  made  contradictory  of  her  story  upon  the  stand. 
Such  evidence,  if  well  fortified,  is  not  generally  admitted  to 
impeach  a  verdict,  as  we  have  frequently  decided"  (citing 
the  cases  supra). 


CHICAGO    AND    EASTERN    ILLINOIS    RAILROAD 
COMPANY  V.  STEWART. 

Supreme  Court  of  Illinois.    1903, 

203  Illinois,  223. 

Mr.  Justice  Wilkin  delivered  the  opinion  of  the  court: 
This  is  an  action  of  trespass  on  the  case,  brought  by 
Robert  Stewart  against  appellant,  to  recover  damages  on 
account  of  a  personal  injury  sustained  by  him  on  the  30th 
day  of  December,  1899,  occasioned  by  a  collision  between 
appellant's  locomotive  engine  and  the  street  car  upon 
which  appellee  was  a  passenger,  in  the  city  of  Chicago. 
The  jury  returned  a  verdict  for  $1,358.40.  Appellant 
made  a  motion  for  a  new  trial,  which  was  overruled,  and 
judgment  was  rendered  upon  the  verdict.  The  railroad 
company  now  prosecutes  a  further  appeal  from  a  judgment 
of  affirmance  in  the  Appellate  Court  for  the  First  District. 
The  only  ground  for  reversal  urged  in  this  court  is  that 
the  court  below  erred  in  overruling  the  defendant's  motion 
for  a  new  trial  on  the  ground  of  newly  discovered  evidence. 
The  claim  for  damages  was  for  injuries  to  the  plaintiff's 
spine,  shoulder  and  arm.  During  the  progress  of  the  trial 
plaintiff  testified  that  he  had  never  received  an  injury  be- 
fore this  accident.  On  cross-examination  he  was  asked  if 
he  had  not  been  injured  some  years  ago  in  an  accident  on 
the  Santa  Fe  railroad,  to  which  he  replied  that  he  did  not 
get  hurt  in  that  accident.  He  was  then  asked  to  hold  up 
his  left  hand,  which  showed  three  fingers  missing,  and  when 
asked  as  to  the  time  of  losing  those  fingers  he  replied  that 
he  did  not  remember  when  it  was.     After  the  verdict  was 


Sec.  7]  New  Trials  719 

returned  the  claim  agent  of  the  appellant  company  made  an 
investigation  on  the  Santa  Fe  accident,  and  ascertained 
from  the  county  hospital  that  on  April  25,  1899,  one  ''E. 
Stuart"  had  been  taken  to  that  hospital  because  of  an  in- 
jury to  his  hand.  The  agent  then  made  an  affidavit  to 
the  facts  ascertained  by  him  in  his  investigation,  and  coun- 
sel for  appellant  presented  it  to  the  court  in  support  of 
the  motion  for  a  new  trial.  Counsel  insisted  that  new  evi- 
dence had  been  discovered  which  would  tend  to  impeach 
the  plaintiff  and  show  that  he  had  sworn  falsely  when  he 
stated  that  he  did  not  know  when  he  received  the  injury  to 
his  hand.  No  claim  is  made  in  this  cause  for  any  injury 
to  the  hand,  therefore  the  loss  of  the  fingers  was  wholly 
immaterial  to  the  issue  in  the  case.  It  was,  perhaps,  prop- 
er, in  the  discretion  of  the  court,  to  permit  the  cross-ex- 
amination of  the  witness  upon  that  subject  for  the  purpose 
of  discrediting  him,  but  for  no  other  purpose.  The  new- 
ly discovered  evidence,  therefore,  even  if  it  would  have 
been  competent  upon  the  trial,  tended  only  to  impeach  or 
discredit  the  plaintiff,  and  that  upon  a  matter  not  material 
to  the  issue.  It  has  been  often  decided  by  this  court  that 
a  new  trial  will  never  be  granted  on  the  ground  of  newly 
discovered  evidence  merely  for  the  purpose  of  impeaching  a 
witness  who  testified  upon  the  trial.  (Friedberg  v.  Peo- 
ple, 102  111.  160;  Grady  v.  People,  125  id.  122;  Monroe  v. 
Snotv,  131  id.  126;  Bemis  v.  Horner,  165  id.  347;  Ohicago 
and  Northern  Raikvag  Co.  v.  Calumet  Stock  Farm,  194  id. 
9.)  The  motion  for  a  new  trial  was  therefore  properly 
overruled. 

The  judgment  of  the  Appellate  Court  will  be  affirmed. 

Judgment  affirmed. 


720  Tkial  Peactice  [Chap.  17 


MOOEE   V.    CHICAGO,   ST.   LOUIS   AND   NEW   OR- 
LEANS RAILROAD  COMPANY. 

Supreme  Court  of  Mississippi.    1881. 

59  Mississippi,  243. 

CooPEE,  J.,  delivered  the  opinion  of  the  court. 

The  appellant  sued  the  Chicago,  St.  Louis  &  New  Orleans 
Railroad  Company  to  recover  damages  for  an  injury  sus- 
tained by  him  in  being  forcibly  ejected  from  one  of  its 
trains  while  the  same  was  in  motion.  At  the  April  Term  of 
the  Circui*t  Court  of  Marshall  County  there  was  a  trial  of 
the  cause  which  resulted  in  a  verdict  and  judgment  for  the 
plaintiff.  The  defendant  moved  for  a  new  trial,  which 
was  granted,  and  thereupon  the  plaintiff  excepted  to  the 
action  of  the  court  in  granting  the  new  trial,  and  a  bill  of  ex- 
ceptions was  signed,  embodying  the  evidence  introduced. 
At  the  October  Term  of  the  court  another  trial  was  had,  re- 
sulting in  a  judgment  for  the  defendant.  The  plaintiff 
made  a  motion  for  a  new  trial,  which  was  overruled;  and 
che  plaintiff  again  excepted,  took  another  bill  of  exceptions, 
and  now  prosecutes  this  appeal,  assigning  for  error  the 
action  of  the  court  below  in  granting  the  new  trial  asked 
by  the  defendant,  and  in  refusing  that  asked  by  himself.  *  * 

The  newly  discovered  evidence  of  that  of  a  witness  who, 
some  days  after  the  occurrences  in  which  the  plaintiff  was 
injured,  had  a  conversation  with  the  conductor  of  the  de- 
fendant, who  the  plaintiff  testified  had  inflicted  the  injuries 
on  him,  in  which  conversation  the  conductor  admitted  to 
the  witness  that  he  had  kicked  the  plaintiff  from  the  train. 
It  is  apparent  that  these  admissions  would  not  have  been 
admissible  in  evidence  for  any  other  purpose  than  that  of 
)mi)eaching  the  credibility  of  the  conductor,  who  had  testi- 
fied on  the  trial  as  a  witness  for  the  defendant,  and  had 
stated  that  lie  had  had  no  part  in  inflicting  the  injury  on  the 
plaintiff;  for  these  declarations  were  not  a  part  of  the  res 
gestae,  and  only  on  that  ground  could  they  bind  the  de- 
fendant. Dickman  v.  Williams,  50  Miss.  500;  1  Greenl. 
Evid.  §  113;  Sisson  v.  Cleveland  Railroad  Co.,  14  Mich. 
489;  Smith  v.  Betty,  11  Gratt.  752;  ThaUhimer  v.  Brincher- 
hoff,  4  Wend.  394;   Virginia  Railroad  Co,  v,  Sayers,  26 


Sec.  7]  New  Trials  721 

Gratt.  328.  But  a  new  trial  will  not  be  granted  on  the 
ground  of  newly  discovered  testimony,  the  only  effect  of 
which  would  be  to  impeach  the  credibility  of  a  witness. 
3  Graham  &  Waterman  on  New  Trials,  1074. 

We  are  therefore  of  opinion  that  there  is  no  error  in  the 
record,  and  the  judgment  is 

Afirmed. 


(c)     Necessary  Diligence. 

NICHOLSON  V.  METCALF. 

Supreme  Court  of  Montana.     1904. 

31  Montana,  276. 

Mr.  Commissioner  Claybekg  prepared  the  following  opin- 
ion for  the  court : 

This  is  an  appeal  by  Metcalf  from  an  order  granting  a 
new  trial.  The  only  ground  of  the  motion  for  a  new  trial 
was_i  ^wly  discovered  evidence.  The  only  affidavit  filed 
showing  that  evidence  was  newly  discovered  is  that  of  plain- 
tiffs. This  affidavit,  in  so  far  as  the  discovery  of  the  evi- 
dence and  the  showing  of  diligence  in  that  regard  is  con- 
cerned, is  as  follows:  ''That  subsequent  to  the  trial  of 
said  cause,  to-wit,  on  the  12th  day  of  December,  A.  D.  1902, 
I  have  discovered  evidence  which  will  establish  the  fact  that 
myself  and  my  co-plaintiff  is  said  action,"  etc.  Then  fol- 
lows a  statement  of  the  evidence  which  has  been  discovered. 
The  affidavit  then  continues:  "I  did  not  know  of  the  ex- 
istence of  said  evidence  at  the  time  of  the  trial,  and  could 
not,  by  the  use  of  reasonable  diligence,  have  discovered 
or  produced  the  same  upon  the  former  trial.  The  name 
of  the  witness  by  which  I  can  establish  the  facts  herein  set 
forth  is  E.  A.  Briggs,  now  residing  at  Centerville,  in  Sil- 
ver Bow  county,  Montana ;  that  I  did  not  for  eighteen  year? 
prior  to  the  12th  day  of  December,  A.  D.  1902,  know  the 
whereabouts  of  said  BriggB."  The  affidavit  of  Briggs  also 
appears  in  the  record,  supporting  the  affidavit  of  plain- 
tiffs as  to  the  facts  to  which  he  would  testify,  and  stating 
T.  p. — *6 


722  Trial  Practice  [Chap.  17 

that  he  was    present  and    heard    the    conversation    upon 
which  plaintiffs'  cause  of  action  was  based. 

The  statute  concerning  new  trials  provides  as  follows: 
' '  The  former  verdict  or  other  decision  may  be  vacated  and 
a  new  trial  granted  on  the  application  of  the  partv  ag- 
grieved for  any  of  the  following  causes  materially  affect- 
ing the  substantial  rights  of  such  party  *  *  *  (4)  Newly 
discovered  evidence  material  for  the  party  making  the  ap- 
plication which  he  could  not  with  reasonable  diligence 
liave  discovered  and  produced  at  the  trial."  (Section 
1171,  Code  of  Civil  Procedure.) 

We  are  of  the  opinion  that  the  affidavit  does  not  contain 
a  sufficient  showing  of  diligence,  as  contemplated  by  the 
statute,  to  warrant  the  order  appealed  from.  {Rand  v. 
Kipp,  27  Mont.  138,  69  Pac.  714;  Gregg  v.  Kommers,  22 
Mont.  511,  57  Pac.  92 ;  Caruthers  v.  Pemherton,  1  Mont. 
Ill;  Butler  v.  V assault,  40  Cal.  74;  Hendy  v.  Desmond,  62 
Cal.  260;  Bagnall  v.  Roach,  76  Cal.  106,  18  Pac.  137;  Bar- 
ton V.  Laws,  4  Colo.  App.  212,  35  Pac.  284;  State  v.  Power, 
24  Wash.  34,  63  Pac.  1112,  63  L.  R.  A.  902  ;  Bradley  v.  Nor- 
ris,  67  Minn.  48,  69  N.  W.  624;  1  Spelling  on  New  Trial 
and  Appeal,  Sees.  209-218.) 

Under  these  authorities  it  was  incumbent  upon  plaintiffs 
to  show  that  they  had  been  guilty  of  no  laches,  and  that 
failure  to  produce  the  evidence  on  the  trial  could  not  be 
imputable  to  lack  of  diligence  on  their  part.  They  must 
make  strict  proof  of  diligence,  and  a  general  a.verment  of 
its  existence  is  insufficient.  Whether  reasonable  diligence 
has  been  used  is  a  question  to  be  determined  by  the  court 
upon  the  affidavits  presented,  and  therefore  these  affida- 
vits should  state  with  particularitv  what  acts  were  per- 
formed. They  should  show  what  diligence  was  used,  how 
the  new  evidence  was  discovered,  why  it  was  not  discovered 
before  the  trial,  and  such  other  facts  as  make  it  clear  that 
the  failure  to  produce  the  evidence  was  not  their  own 
fault,  or  because  of  want  of  diligence  on  their  part.  So 
far  as  the  evidence  presented  in  this  case  is  concerned,  the 
first  search  for  evidence  may  have  been  made  after  the 
cause  had  been  tried.  If  Briggs  was  present  at  the  con- 
versation, plaintiffs  must  have  known  it.  Perhaps  this 
fact  escaped  their  memory  at  the  time  of  the  trial,  but 


Sec.  7]  New  Tkials  723 

mere  forgetfulness  is  no  excuse.     {Hendy  v.  Desmond,  62 
Cal.  2G0.) 

The  mere  allegation  that  for  eighteen  years  plaintiffs 
did  not  know  the  whereabouts  of  Briggs  is  insufficient.  If 
plaintiffs  knew  that  Briggs  could  testify  in  their  behalf, 
they  should  have  shown  that  they  had  exhausted  the  meth- 
ods provided  by  law  for  obtaining  the  attendance  of  wit- 
nesses. If  they  did  not  know  that  Briggs  could  so  testify, 
it  is  immaterial  that  they  did  not  know  his  whereabouts. 

While  it  is  true  that  the  granting  or  refusing  of  a  motion 
for  a  new  trial  is  largely  in  the  discretion  of  the  trial  court, 
and  its  action  will  not  be  interfered  with  on  appeal  unless 
there  is  abuse  of  such  discretion,  the  affidavits  being  defec- 
tive in  the  showing  of  diligence,  we  are  satisfied  that  the 
court  below  had  no  authority  to  grant  the  order,  and  there- 
fore abused  its  discretion. 

We  therefore  advise  that  the  order  appealed  from  be 
reversed,  and  the  cause  remanded. 

Per  Curiam. — For  the  reasons  stated  in  the  foregoing 
opinion,  the  order  is  reversed  and  the  cause  remanded. 


COFFER  V.  ERICKSON. 

Supreme  Court  of  Washington.    1911. 

61  Washington,  559. 

Dunbar,  J. — The  appellant,  Erickson,  was  under  a  con- 
tract with  the  city  of 'Seattle  for  the  regrade  of  Fourth 
avenue  from  Yesler  Way  north  to  Pike  street.  Fourth 
avenue  runs  northerly  and  southerly,  and  is  crossed  by 
Columbia  street,  running  easterly  and  westerly.  At  the 
intersection  of  Columbia  street  and  Fourth  avenue.  Fourth 
avenue  had  been  cut  down  about  thirteen  feet,  and  in  order 
to  permit  the  going  and  coming  of  foot  passengers  upon 
Columbia  street  across  Fourth  avenue,  the  city  had  author- 
ized the  appellant  to  construct  a  wooden  bridge,  extending 
along  the  north  side  of  Columbia  street  from  the  east  side 
of  I'ourth  avenue  to  the  west  side,  spanning  the  entire 
Fourth  avenue.     The  bridge  was  sixty  eight  feet  long,  the 


724  Triaij  Practice  [Chap.  17 

main  part  of  it  six  feet  wide,  with  extending  floors  three 
feet  on  each  side,  making  the  entire  width  of  the  bridge,  so 
far  as  protection  from  anything  below  was  concerned, 
about  twelve  feet.  The  appellant  at  the  time  of  this  acci- 
dent, which  was  in  September,  1908,  had  laid  down  two 
tracks  upon  which  he  operated  trains  of  dump  cars  drawn 
by  small  locomotive  engines,  to  carry  the  dirt  from  the 
northern  portion  of  the  work  southerly,  and  these  trains 
passed  to  and  fro  under  this  foot  bridge.  The  respond- 
ent was  a  timber  cruiser  and  had  lived  in  that  neighbor- 
hood for  about  a  year.  On  the  first  of  September,  1908, 
while  walking  down  Columbia  street  he  stepped  upon  this 
bridge,  and  while  going  across  it,  one  of  the  appellant's 
engines  carrying  some  empty  dirt  cars  passed  under  the 
bridge  and,  according  to  respondent's  complaint,  puffed 
up  or  threw  up  on  top  of  the  bridge  a  cloud  of  cinders,  one 
of  which  was  thrown  into  respondent's  eye,  with  the  effect 
that,  after  a  long  treatment,  the  eye  was  lost ;  and  this  ac- 
tion is  brought  for  damages  for  said  loss. 
********** 

It  is  also  assigned  that  the  court  erred  in  not  granting 
the  appellant  a  new  trial  on  the  ground  of  newly  discov- 
ered evidence.  The  application  for  new  trial  was  based  on 
the  affidavit  of  John  J.  Jamison,  a  clerk  in  the  office  of  tli' 
attorneys  for  the  appellant,  who  swears  that,  as  such  clerk, 
he  had  sole  charge  of  the  investigation  of  the  facts  con- 
stituting a  defense,  and  of  the  securing  of  witnesses  and  the 
preparation  of  the  trial  for  the  appellant;  tliat  effort  had 
been  made  to  obtain  the  names  of  the  nurses  at  the  hospital 
at  the  time  of  respondent's  sojourn  there,  which  had  fail- 
ed; that  tlie  nurse  Anna  Bonen  had  testified  that,  in  irri- 
gating tlie  eye  of  tlie  respondent,  a  cinder,  about  a  quarter 
of  an  inch  long,  had  been  washed  therefrom  into  the  re- 
ceiving basin,  and  that  this  cinder  had  been  discovered 
by,  and  examined  by.  Sister  Crescent,  who  was  the  chief 
nurse;  that  the  existence  of  Sister  Crescent  was  not  known 
to  the  appellant  prior  to  the  time  of  this  testimony,  and 
that  immediate  steps  were  taken  to  obtain  the  testimony 
of  said  Sister  Crescent,  who  was  found  to  be  in  Colfax, 
Washington ;  that  an  affidavit  had  been  obtained  from  her 
which,  in  effect,  disputed  the  testimony  of  Miss  Bonen  in 
relation  to  the  cinder,  and  that  on  account  of  this  newly 


Sec.  7]  New  Teials  725 

discovered  evidence,  a  new  trial  should  be  granted.  But 
this  testimony  was  adduced  early  in  the  case.  Counsel 
had  notice  on  the  2nd  of  February,  by  the  testimony  of  the 
nurse  Miss  Bonen,  that  Sister  Crescent  was  present  when 
the  particle  was  washed  from  the  eye  into  the  basin,  and 
that  Sister  Crescent  picked  up  the  particle  and  examined 
it,  and  afterwards  lost  it.  It  also  appears  from  the  testi- 
mony of  Dr.  Burns,  early  in  the  case,  that,  while  he  was 
attending  the  respondent  at  the  hospital,  he  was  advised 
that  this  substance  had  been  washed  from  the  eye. 

The  granting  of  a  new  trial  on  the  ground  of  newly  dis- 
covered evidence  is  a  question  necessarily  so  largely  in  the 
discretion  of  the  trial  judge  that  it  must  appear  with  rea- 
sonable certainty  that  such  discretion  has  been  abused  to 
the  prejudice  of  the  appellant,  before  the  appellate  court 
will  substitute  its  judgment  for  that  of  the  presiding  judge, 
who  has  observed  the  proceeding  throughout  the  trial.  In 
this  case,  the  judge  might  reasonably  have  concluded  that 
due  diligence  had  not  been  exercised  by  appellant's  at- 
torneys. The  attending  physician.  Dr.  Burns,  indicated 
by  his  testimony  that  he  was  at  least  friendly  to  the  defense. 
A  consultation  with  him  would,  no  doubt,  have  disclose*' 
who  the  nurses  were  who  attended  on  respondent  while  in 
the  hospital,  and  it  would  seem,  in  a  case  of  this  kind,  that 
due  diligence  would  have  required  the  ascertainment  of 
that  fact.  Nor  did  it  seem  to  have  been  any  secret,  for  it 
readily  developed  in  the  trial,  by  the  testimony  of  the  nurse 
Miss  Bonen  and  Sister  Arthur,  that  Sister  Crescent  was 
the  chief  nurse  during  respondent's  stay  at  the  hospital. 
These  were  circumstances  which  the  court  might  reason- 
ably take  into  consideration,  in  connection  with  the  claim 
of  the  clerk  that  he  had  been  unable  to  ascertain  who  the 
nurses  were.  In  addition  to  this,  the  appellant  was  in- 
formed of  this  transaction  and  of  the  fact  that  Sister  Cres- 
cent witnessed  it,  in  the  early  stage  of  the  trial,  viz.,  on 
February  2,  and  the  trial  was  extended  over  February  4; 
and  notwithstanding  the  fact  that  the  affidavit  sets  forth 
"that  the  town  of  Colfax  is  about  three  hundred  and  fifty 
miles  or  more  from  the  city  of  Seattle,  and  that  it  was  ut- 
terly impossible  to  obtain  an  interview  with,  or  the  attend- 
ance of,  Sister  Crescent  at  said  trial,"  no  motion  was  made 
for  a  continuance  and  no  suggestion  of  surprise.    After 


726  Trial  Practice  [Chap.  K 

having  knowledge  of  the  facts  comi^lained  of,  the  appel- 
lant offered  his  testimony  and,  at  the  close  thereof,  formal- 
ly rested  his  case.  He  should  not  be  permitted  to  submit 
his  case  on  one  set  of  facts  and,  if  a  verdict  is  found  against 
him,  obtain  another  trial  on  another  set  of  facts  which 
were  known  to  him  at  the  time  of  such  submission.  Such 
has  been  the  uniform  holding  of  this  court  where  no  con- 
tinuance was  asked  for.  Pinmis  v.  Puget  Sound  Brewing 
Co.,  18  Wash.  108,  50  Pac.  930 ;  Woods  v.  Globe  Nav.  Co., 
40  Wash.  376,  82  Pac.  401;  Reeder  v.  Traders'  Nat.  Bank 
of  Spokane,  28  Wash.  139,  68  Pac.  461. 

Considering  the  whole  case,  we  see  no  reason  for  disturb- 
ing the  judgment.     It  is  therefore  affirmed. 

RuDKiN^  C.  J.,  and  Crow,  J.,  concur.  Morris,  J.,  dis- 
senting.    Chadwick,  J.,  concurs  with  Morris,  J. 


WHITTLESEY  V.  BURLINGTON,  CEDAR  RAPIDS  & 
NORTHERN  RAILWAY  COMPANY. 

Supreme  Court  of  loiva.    1903. 

121  loiva,  597. 

McLain,  J.  *  *  * 

********** 

Complaint  is  made  of  refusal  to  grant  a  new  trial  on 
account  of  newly  discovered  evidence,  but  it  is  enough 
to  say  that  such  evidence  related  to  matters  of  expert 
knowledge  in  regard  to  railroading,  and  could  have  been 
furnished  by  any  expert  witnesses,  as  well  as  by  those 
named  in  the  application.  The  showing  was  not  sufficient 
to  entitle  plaintiff  to  a  new  trial  in  tliat  respect. 

The  result  is  that  judgment  of  the  lower  court  is  affirm- 
ed. 


Sec.  7]  New  Tbials  72; 


(d)     Probability  of  Change  in  Result. 

PARSONS  V.  LEWISTON,  BRUNSWICK  AND  BATH 
STRET  RAILWAY. 

Supreme  Judicial  Court  of  Maine.    1902. 

96  Maine,  503. 

Sitting:  Wiswell,  C.  J.,  Emery,  Whitehouse,  Strout, 
Peabody,  JJ. 

WiswELL,  C.  J.  While  the  plaintiff  was  driving  a  horse 
attached  to  a  long  covered  vehicle  on  runners  across  the 
bridge  between  the  cities  of  Lewiston  and  Auburn,  in  the 
direction  of  Auburn,  he  met  the  defendant's  rotary  snow- 
plow  coming  towards  him  from  Auburn ;  his  horse  became 
frightened  at  the  appearance  of  the  snow-plow  and  the 
noise  caused  by  it  to  such  an  extent  as  to  become  unman- 
ageable; finally,  the  horse  bolted  towards  one  side  of  the 
bridge,  and,  after  striking  that  side,  started  diagonally 
across  the  bridge  to  the  other  side,  the  plaintiff  in  the  mean- 
time was  thrown  out,  dragged  some  distance  and  sustained 
severe  injuries. 

'  The  plaintiff,  claiming  that  the  accident  was  attributable 
to  the  negligence  of  the  defendant's  employees  in  the  man- 
agement of  the  snow-plow,  brought  this  suit  to  recover  the 
damages  sustained  by  him.  The  trial  resulted  in  a  ver- 
dict for  the  defendant  and  the  plaintiff  brings  the  case 
here  upon  two  motions  for  a  new  trial,  one,  because  the 
verdict  was  against  the  weight  of  the  evidence,  the  other 
upon  the  ground  of  newly-discovered  evidence.  The  plain- 
tiff's counsel  admits  in  argument  that  the  jury  was  author- 
ized in  finding  a  verdict  for  the  defendant  upon  the  evi- 
dence introduced  at  the  trial,  so  that  it  only  becomes  neces- 
sary to  consider  the  second  motion  and  the  newly-discov- 
ered testimony  presented  under  it,  in  connection  with  the 
case  as  submitted  to  the  jury. 

The  contention  of  the  plaintiff  at  the  trial  was  that  his 
horse  showed  signs  of  fright  when  about  one  hundred  feet 
distant  from  the  snow-plow  as  the  two  were  slowly  ap- 
proaching each  other;  that  the  fact  that  his  horse  was 
greatly  frightened  nud  wn«  becoming  unmanageable  was 
so  apparent  that  it  should  have  been  seen,  and  in  fact  was 


728  Teial  Peactice  [Chap.  17 

seen,  by  the  motorman  a  sufficient  length  of  time  before  the 
horse  bolted,  for  him  to  have  stopped  his  plow,  and  allow 
the  plaintiff  to  drive  past;  that  by  doing  so  the  accident 
would  have  been  avoided,  but  that  he  failed  to  stop  the 
snow-plow  and  that  this  failure  was  the  proximate  cause 
of  the  accident  resulting  in  the  injury  to  the  plaintiff.  The 
defendant's  answer  to  this  proposition  is,  and  was  at  ti  '^ 
trial,  that  the  motorman  did  stop  his  plow  as  soon  as  the 
horse  showed  any  signs  of  fright.  Defendant's  counsel  in 
their  brief  say,  "coincident  in  point  of  time  with  the  first 
appearance  of  real  fright  on  the  part  of  the  horse,  the  mo- 
torman shut  off  the  current,  applied  the  brake,  and  stop- 
ped the  plow." 

Upon  this  issue,  the  plaintiff  testified  that  the  snow-plow 
did  not  stop  until  after  the  accident,  and  one  witness  call- 
ed by  him,  whose  means  of  observation  on  account  of  his 
distance  from  the  scene  of  the  accident  were  not  particular- 
ly good,  to  some  extent  substantiated  the  plaintiff,  stating 
it  as  his  impression  that  the  snow-plow  did  not  stop.  Up- 
on the  other  hand,  four  witnesses  called  by  the  defense, 
all  of  whom  were  on  the  snow-plow  at  the  time,  and  in  the 
employ  of  the  defendant  corporation,  and  three  of  whom 
were  still  in  its  employ  at  the  time  of  the  trial,  all  testified 
in  substance  that  the  motorman  stopped  his  plow  as  soon 
as  the  horse  appeared  to  be  frightened.  A  jury  certainly 
would  be  authorized  to  find  that  it  was  negligence  upon  the 
part  of  those  managing  the  rotary  snow-plow,  such  as  this 
one  was  described  and  shown  by  the  photographs  to  be, 
to  continue  its  movement  along  the  track,  in  such  a  situa- 
tion as  this,  when  an  approaching  horse  displayed  signs  of 
great  fright  and  of  becoming  unmanageable.  But,  upon 
the  other  hand,  the  jury  was  authorized  to  find  from  the 
testimony  in  the  case  that  the  motorman  seasonably  stopped 
his  plow,  and  did  all  that  he  could  do  to  prevent  the  acci- 
dent. So  that  the  important  issue  of  fact  at  the  trial  was, 
as  to  whether  or  not  the  plow  was  seasonably  stopped,  in 
view  of  the  situation. 

Since  the  trial  the  plaintiff  has  discovered  three  addi- 
tional witnesses  who  saw  the  accident  and  who  will  testify, 
with  varying  degrees  of  positiveness,  that  the  snow-plow 
did  not  stop  until  after  the  accident.  These  witnesses  are 
entirely  disinterested,  they  had  no  acquaintance  with  tho 


Sec.  7]  New  Trials  729 

plaintiff,  tlieir  opportunities  for  seeing  what  happened  were 
good.  The  testimony  of  these  tliree  witnesses  is  newlj^-dis- 
covered  within  the  well  established  rnle  in  this  state,  its 
discovery  subsequent  to  the  trial  was  accidental;  and  the 
failure  of  the  plaintiff  or  his  counsel  to  be  earlier  aware 
of  its  existence  cannot  be  attributed  to  any  negligence  up- 
on their  part,  because  diligence  upon  their  part  would  not 
have  been  likely  to  have  put  them  in  possession  of  it. 

The  question  then  is,  whether  the  court,  in  the  exercise 
of  its  sound  discretion,  but  within  the  rules  which  have  been 
adopted  relative  to  granting  new  trials  upon  this  ground, 
should  grant  a  new  trial  in  this  case.  But  first,  inasmuch 
as  there  may  be  some  confusion  as  to  what  the  true  doctrine 
is  governing  the  court  in  the  exercise  of  its  discretion  is 
cases  of  this  kind,  growing  out  of  the  language  used  in  two 
decisions  of  this  court,  it  may  be  well  to  carefully  state  it. 

The  true  doctrine  is,  that  before  the  court  will  grant  a 
new  trial  upon  this  ground,  the  newly-discovered  testimony 
must  be  of  such  character,  weight  and  value,  considered 
in  connection  with  the  evidence  already  in  the  case,  that  it 
seems  to  the  court  probable  that  on  a  new  trial,  with  the 
additional  evidence,  the  result  would  be  changed;  or  it 
must  be  made  to  appear  to  the  court  that  injustice  is  likely 
to  be  done  if  the  new  trial  is  refused.  It  is  not  sufficient 
that  there  may  be  a  possibility  or  chance  of  a  different  re- 
sult, or  that  a  jury  might  be  induced  to  give  a  different 
verdict ;  there  must  be  a  probability  that  the  verdict  would 
be  different  upon  a  new  trial.  But  it  is  not  necessary  that 
the  additional  testimony  should  be  such  as  to  require  a 
different  verdict. 

The  correct  doctrine  had  been  so  repeatedly  stated  by 
this  court,  that  we  quote  the  language  used  in  numerous 
earlier  decisions  relative  to  the  character  of  the  newly-dis- 
covered evidence  necessary  and  sufficient  to  justify  the 
court  in  granting  a  new  trial  upon  this  ground.  "A  new 
trial  to  permit  newly-discovered  testimony  to  be  introduced 
should  only  be  granted  *  *  *  when  there  is  reason  to  be- 
lieve that  the  verdict  would  have  different  if  it  had  been 
before  the  jury."  Eaiidly  v.  Call,  30  Maine,  10.  ''Unless 
the  court  should  think  it  probable  the  new  evidence  would 
alter  the  verdict."  Snowman  v.  Wardwell,  32  Maine,  275. 
''A  review  will  never  be  granted  to  let  in  additional  testi- 


730  Tkial  Peactice  [Chap.  17 

mony,  when  such  testimony  would  not  be  likely  to  change 
the  result."  Todd  v.  Chipman,  62  Maine,  189.  ''Nor  un- 
less there  be  reason  to  believe  that  it  would  change  the  re- 
sult." Trash  v.  Unity,  74  Maine,  208.  In  Linscott  v. 
Orient  Insurance  Co.,  88  Maine,  497,  51  Am.  St.  Rep.  435, 
the  court  stated  the  rule,  citing  various  earlier  cases,  in 
these  words:  "It  has  long  been  the  settled  doctrine  of 
this  court  that  a  new  trial  will  not  be  granted  on  the 
ground  of  newly-discovered  evidence,  unless  it  seems  to 
the  court  probable  that  it  might  alter  the  verdict."  In 
Stackpole  v.  Perkins,  85  Maine,  298,  nothing  is  said  in  the 
opinion  in  regard  to  the  new  evidence  being  of  such  a  char- 
acter as  to  require  a  different  verdict.  The  court  does 
say  in  that  case:  "If  believed  (the  newly-discovered  wit- 
ness) his  testimony  must  substantially  destroy  the  evidence 
of  a  witness  at  the  trial,  whose  testimony  may  have  been 
considered  of  controlling  weight."  A  new  trial  was  grant- 
ed in  this  case,  although  the  effect  of  the  newly-discovered 
testimony  was  stated  by  the  court  to  depend  upon  the 
weight  given  to  it  by  the  jury. 

It  is  true  that  in  Linscott  v.  Orient  Insurance  Company, 
supra,  where  the  correct  doctrine  of  this  state  was  very 
distinctly  stated  as  above  quoted,  and  in  accordance  with 
the  previous  authorities,  the  court,  at  the  conclusion  of  the 
opinion  said  that  the  question  was,  "whether  the  legitimate 
effect  of  such  evidence  would  require  a  different  verdict." 
The  case  of  State  v.  Stain,  82  Maine,  472,  was  cited  in  sup- 
port of  this  doctrine.  But  we  do  not  find  the  rule  so  stated 
in  any  case,  other  than  in  these  two,  in  this  state.  If  it 
were  true  that  such  new  evidence  must  be  of  such  a  char- 
acter as  to  require  a  different  verdict  upon  a  new  trial, 
then  it  would  follow  as  a  logical  sequence  that  none  but  a 
different  verdict  would  be  allowed  by  the  court  to  stand. 
The  rule  thus  stated  in  these  two  cases  is  too  strict,  it 
would  deprive  a  party  of  the  privilege  of  having  his  new 
evidence  passed  upon  by  a  jury,  whose  peculiar  province 
it  is  to  decide  controverted  issues  of  fact,  even  in  cases 
whore  the  court  is  of  opinion  that  the  new  evidence  would 
proba))ly  change  the  result,  or  that  injustice  would  be  like- 
ly to  be  done  if  a  new  trial  was  not  granted. 

In  tills  case  we  can  not  say  that  the  new  evidence,  in 
connection  with  the  former  evidence,  would  require  a  dif- 


Sec.  7]  New  Trials  731 

ferent  verdict.  After  this  evidence  is  submitted  it  then 
becomes  a  question  for  the  jury  to  pass  upon.  But  it  does 
seem  probable  to  the  court  that  the  verdict  will  be  different 
when  the  case  is  submitted  anew  with  the  additional  evi- 
dence. 

It  is  true  that  this  evidence  is  cumulative,  but  it  is  not  an 
absolute  and  unqualified  rule  that  a  new  trial  will  not  be 
granted  under  any  circumstances  upon  newly-discovered 
(Cumulative  testimony.  Snowman  v.  Wardwell,  32  Maine, 
275.  When  the  newly-discovered  evidence  is  additional  to 
some  already  in  the  case  in  support  of  the  same  proposi- 
tion, the  probability  that  such  new  evidence  would  change 
the  result  is  generally  very  much  lessened,  so  that  much 
more  evidence,  or  evidence  of  much  more  value,  will  gen- 
erally be  required  when  such  evidence  is  cumulative ;  but  if 
the  newly-discovered  testimony,  although  merely  cumula- 
tive, is  of  such  a  character  as  to  make  it  seem  probable 
to  the  conrt  that,  notwithstanding  the  same  question  has 
already  been  passed  upon  by  the  jury,  a  different  result 
would  be  reached  upon  another  trial  with  the  new  evidence, 
then  such  new  trial  should  be  granted. 

The  provision  of  the  statute,  R.  S.  c.  89,  §  4,  applicable  to 
petitions  for  review,  that  "newly-discovered  cumulative 
evidence  is  admissible  and  shall  have  the  same  effect  as 
other  newly-discovered  evidence,"  should  have  some  effect 
upon  the  value  of  such  testimony  upon  a  motion  for  a  new 
trial;  otherwise,  a  party  who  had  lost  a  verdict  would 
liave  greater  rights  upon  a  petition  for  review  after  judg- 
ment than  upon  a  motion  for  a  new  trial  before. 

And  after  all,  while  it  is  important  to  have  general  rules 
in  regard  to  the  granting  of  new  trials  upon  this  ground, 
which  may  be  known  to  the  profession,  and  by  which  the 
court  will  be  governed  so  far  as  practicable,  each  case  dif- 
fers so  materially  from  every  other,  that  the  decision  of 
the  question  as  to  whether  or  not  a  new  trial  should  be 
granted  in  any  particular  case  must  necessarily  depend,  to 
a  very  large  extent,  but  of  course  within  the  limits  of  such 
general  rules,  upon  the  sound  discretion  of  the  court,  which 
will  always  be  actuated  by  a  desire,  upon  the  one  hand,  to 
])ut  an  end  to  litigation  when  tlie  parties  have  fairly  had 
tlieir  day  in  court,  and,  upon  the  other,  to  prevent  the  like- 
lihood of  any  injustice  being  done. 


732  Tbial  Practice  [Chap.  17 

In  the  exercise  of  this  discretion,  and  within  the  rules 
as  above  laid  down,  the  court  is  of  the  opinion  that  this 
plaintiff  should  have  the  opportunity  to  again  submit  his 
case,  with  the  additional  testimony,  to  the  determination  of 
a  jury. 

New  trial  granted. 


OBERLANDEE  V.  FIXEN  &  CO. 

Supreme  Court  of  California.    1900. 
129  California,  690. 

The  Court. — The  appellant  recovered  judgment  in  the 
court  below  for  damages  (seventeen  hundred  and  fifty  dol- 
lars), resulting  from  her  falling  down  a  negligently  con- 
structed staircase  leading  from  the  defendant's  storeroom, 
where  she  had  just  been  employed  by  the  defendant,  to  the 
basement.  The  court  granted  a  new  trial  on  the  ground 
of  newly-discovered  evidence;  and  the  grounds  urged  for 
reversal  are:  1.  That  the  affidavits  were  not  served  or 
filed  in  time;  2.  Want  of  diligence  on  the  part  of  de- 
fendant in  preparation  for  trial;  and  3.  That  the  newly- 
discovered  evidence  was  merely  cumulative. 

The  first  point  presents  no  difficulty.  The  time  allowed 
for  defendant  for  filing  affidavits  was  extended  by  order  of 
court,  and  the  affidavits  were  in  fact  filed  more  than  thirty 
days  beyond  the  statutory  time;  but  an  extension  beyond 
thirty  days  is  forbidden  by  the  section  1054  of  the  Code  of 
Civil  Procedure  only  with  reference  to  the  cases  therein 
enumerated ;  among  which  the  filing  of  affidavits  on  motion 
for  new  trial  is  not  included,  with  reference  to  which  the 
power  of  the  court  to  extend  is  given  by  section  659,  sub- 
division 1.  The  case  of  Smith  v.  Jordan,  122  Cal.  68,  cited 
by  appellant's  counsel,  bears  no  analogy  to  the  case  at  bar; 
and  the  rule  therein  referred  to — established  in  Flagg  v. 
Puferhaugh,  98  Cal.  134 — has  no  application. 

The  other  points  may  be  conveniently  considered  to- 
gether. Under  the  provisions  of  section  657  of  the  Code 
of  Civil  Procedure  the  requisites  for  a  new  trial  on  the 


Sec.  7]  New  Tkials  733 

gTOimd  of  newly  discovered  evidence  are  that  the  evidence 
could  not,  with  reasonable  diligence,  have  been  discov- 
ered and  produced  at  the  trial,  and  that  it  shall  be  "ma- 
terial for  the  party  making  the  application"  (subdivision 
4) — or,  as  previously  expressed,  shall  be  of  a  character 
"materially  affecting  the  substantial  rights  of  such  party." 
The  last  requisite  would  seem  to  imply  that  the  newly  dis- 
covered evidence  should  be  of  such  a  character  as  to  render 
a  different  result  probable  on  a  new  trial ;  and  accordingly 
such  is  held  by  the  courts  to  be  the  established  rule.  (Hayne 
on  New  Trial  and  Appeal,  91.)  Where  these  requisites  oc- 
cur they  constitute  sufficient  grounds  for  new  trial,  and  no 
others  can  be  required. 

Hence  the  rule,  so  often  reiterated  by  the  courts,  that  a 
new  trial  should  not  be  granted  where  the  evidence  is 
merely  cumulative,  must  be  regarded  (in  this  state)  not  as 
an  independent  rule,  additional  to  those  established  by  the 
provisions  of  section  657  of  the  code,  but  as  a  mere  appli- 
cation of  those  rules,  or,  as  it  has  been  expressed,  as  "a 
corollary  of  the  requirement  that  the  newly  discovered  evi- 
dence must  be  such  as  to  render  a  different  result  probable 
on  a  retrial  of  the  case."  (Hayne  on  New  Trial  and  A]) 
peal,  sec.  90,  pp.  255,  256.)  For  (continuing  the  citation) 
"it  is  evident  that  new  evidence,  although  cumulative, 
might  be  of  so  overwhelming  a  character  as  to  render  a  dif- 
ferent result  certain"  (or  probable) ;  and  in  such  case  un- 
der the  express  provisions  of  the  code  a  new  trial  should 
be  granted.  The  rule  should  therefore  be  construed  as 
simply  holding  that  cumulative  evidence  is  insufficient  "un- 
less it  is  clear  such  evidence  would  change  the  result." 
{Levifsky  v.  Johnson,  35  Cal.  41.)  Hence,  "a  new  trial 
should  not  be  refused  merely  because  the  evidence  is  cumu- 
lative in  a  case  where  the  cumulation  is  sufficiently  strong 
to  render  a  different  result  probable."  That  this  is  the 
true  statement  of  the  rule  is  established  in  the  case  last 
cited,  and  in  Von  Glahn  v.  Brennan,  81  Cal.  264,  and  in 
O'Bourke  v.  Vennekohl,  104  Cal.  256 — from  which  the  above 
language  is  quoted;  and  it  is  so  in  effect  held  in  People  v. 
Standford,  64  Cal.  27. 

Whether  the  evidence  is  of  this  character  is  not  a  ques- 
tion of  law  but  for  the  judgment  of  the  trial  judge,  whose 
discretion  will  not  be  interfered  with  by  this  court  except 


734:  Tkial  Peactice  [Chap.  17 

in  cases  of  manifest  abuse.  Hence,  where  the  motion  is 
denied,  the  fact  that  the  newly  discovered  evidence  is  mere- 
ly cumulative  will  in  general  be  a  sufficient  ground  for 
affirmance;  but  where  the  motion  is  granted,  the  contrary 
will  hold.  For,  in  either  case,  it  is  for  the  trial  judge  to 
determine  whether  the  evidence  is  of  character  probably 
to  affect  the  result  on  a  new  trial ;  and  unless  the  evidence 
be  of  such  a  character  as  to  make  it  manifest  and  certain 
to  this  court  that  in  the  one  case  it  would,  or  in  the  other 
that  it  would  not,  result  differently  on  a  retrial,  the  order 
will  not  be  disturbed.  The  present  case,  we  think,  comes 
within  the  principles  above  laid  down,  and  it  will,  therefore, 
in  the  view  we  take  of  the  case,  be  unnecessary  to  determine 
whether  the  newly  discovered  evidence  was  in  fact  cumula- 
tive or  otherwise. 

Whether  in  this  case  the  evidence  could  with  reasonable 
diligence  have  been  discovered  and  produced  at  the  trial 
was  also  a  question  upon  which  the  judgment  of  the  court 
below  must  be  regarded  as  conclusive,  unless  it  appear  that 
his  discretion  has  been  abused;  and  on  this  point  we  think 
the  moving  party  made  a  sufficient  case.  {Jones  v.  Single- 
ton, 45  Cal.  92.) 

Counsel  for  appellant,  on  the  construction  they  put  on  the 
affidavit  of  A.  H.  Fixen,  make  a  very  strong  case,  and 
could  we  agree  in  that  construction  our  conclusion  might 
be  different;  but  our  view  of  the  terms  of  the  affidavit  is 
different.  It  reads:  * 'I  am  the  treasurer  of  the  defendant 
corporation  and  as  such  had  particular  charge  of  arrang- 
ing defendant's  defense  to  this  action  subsequent  to  the 
trial  of  said  cause,  to-wit,  on  or  about  the  first  day  of 
June,  1896,  and  for  some  time  thereafter,  I  have  discovered 
evidence,"  etc.  This  is  construed  by  the  counsel  as  saying 
that  affiant  had  charge  of  the  defense  ''subsequent  to  the 
trial"  only.  But,  obviously,  this  construction  cannot  be 
entertained,  and  we  must  construe  the  affidavit  as  though 
"subsequent"  were  written  with  a  capital  initial,  and  a 
period  inserted  after  "action."  (Bouvier's  Law  Diction- 
ary, word  "Punctuation.")  Thus  construed,  the  affidavit 
clearly  states  that  the  affiant  had  charge  of  the  defense  and 
shows  that  he  used  reasonable  diligence  in  preparing  for 
it.    Nor  does  it  appear  that  the  newly  discovered  evidence 


Sec.  7]  New  Trials  735 

was  of  a  character  ''to  put  defendant  upon  inquiry." 
(Heintz  v.  Cooper,  104  Cal.  671.) 

The  order  granting  a  new  trial  must  therefore  be  affirm- 
ed, and  it  is  so  ordered. 

Hearing  in  Bank  denied. 


ELLIS  Y.  MARTIN  AUTOMOBILE  COMPANY. 

Supreme  Court  of  New  Jersey.     1909. 
77  New  Jersey  Law,  339. 

On  rule  to  show  cause. 

The  opinion  of  the  court  was  delivered  by 

Trenchard,  J.  The  plaintiff,  Alfred  L.  Ellis,  was  the 
owner  of  an  automobile.  The  defendant  ran  a  garage, 
with  a  repair  department,  at  Plainfield.  On  June  18th, 
1907,  the  plaintiff  left  his  automobile  at  the  defendant's 
garage  for  repairs.  Certain  repairs,  hereinafter  more  par- 
ticularly stated,  were  made.  Later,  when  the  plaintiff  call- 
I  'd  for  the  machine,  the  company  declined  to  let  him  have 
it  unless  he  would  pay  the  bill  for  the  repairs,  which  he 
declined  to  do.  Thereupon  the  plaintiff  caused  to  be  is- 
sued a  writ  of  replevin.  The  defendant  company  gave  bond 
and  held  the  car,  and  this  suit  resulted.  The  jury  found 
a  verdict  for  the  plaintiff,  whereupon  the  defendant  ob- 
tained this  rule  to  show  cause  why  a  new  trial  should  not 
be  granted  upon  the  ground  of  newly-discovered  evidence. 

According  to  the  plaintiff's  testimony  at  the  trial  the 
automobile  was  left  with  the  defendant  company  only  for 
the  purpose  of  having  an  old  tire  retreaded.  According 
to  the  testimony  on  behalf  of  the  defendant  company  it 
was  there  for  general  repairs. 

It  was  undisputed  that  in  fact  the  car  was  repaired  gen- 
erally by  the  defendant  company,  including  repairs  to,  and 
new  parts  for,  the  eng-ine.  But  it  was  contended  by  the 
plaintiff  that  the  machine  was  in  good  condition  when  left 
with  the  defendant,  and  that  no  repairs  were  necessary 
and  none  were  ordered  excepting  that  to  the  tire,  and  that 
the  repairs  to,  and  new  parts  for,  the  engine  were  rendered 
ncessary  only  by  the  negligence  of  the  defendant  company 


736  Trial  Peactice  [Chap.  17 

in  handling  the  machine  while  in  their  care. 

It  will  thus  be  seen  that  the  condition  of  the  plaintiff's 
car  when  it  was  left  with  the  defendant  was  material  to 
the  issue,  not  only  as  bearing  upon  the  value  of  the  car,  but 
as  tending  to  show  for  what  purpose  it  was  left  with  the 
defendant  and  what  repairs  were  ordered  by  the  plaintiff. 

In  order  to  support  his  contention  that  it  was  in  good 
condition  the  plaintiff  testified  that  he  was  a  physician  in 
active  practice;  that  he  had  purchased  the  car  in  April, 
1907,  and  had  used  it  continuously  in  his  practice  from  that 
time  until  June  18th,  1907,  when  he  took  it  to  the  defendant 
to  have  the  tire  retreaded ;  that  he  never  had  any  difficulty 
with  it ;  that  it  was  in  good  condition  when  he  bought  it  and 
was  in  good  condition  when  he  left  it  with  the  defendant. 

On  the  other  hand,  the  witnesses  called  by  the  defendant 
company  testified  in  effect  that  the  car  was  badly  in  need 
of  repair  when  it  was  brought  to  them,  and  that  the  repairs 
to  the  engine  were  rendered  necessary  by  its  condition 
when  they  received  it  and  not  to  any  negligence  upon  their 
part. 

At  the  trial  the  plaintiff,  after  testifying  that  he  had 
owned  and  driven  the  car  since  April,  1907,  further  stated 
that  he  had  purchased  it  of  the  Manhattan  Storage  Com- 
pany of  New  York. 

The  newly-discovered  evidence  is  to  the  effect  that  in 
fact  the  car  was  bought  by  the  plaintiff  on  June  14th,  1907 
(but  four  days  before  it  was  left  at  the  garage),  and  that 
it  had  never  been  in  his  possession  before  that  time;  that 
it  was  then  four  years  old  and  was  sold  as  it  stood  on  the 
floor,  without  demonstration  and  without  guarantee,  and 
that  its  value  was  much  less  than  that  stated  by  the  plain- 
tiff on  trial. 

With  respect  to  this  evidence  it  is  sufficient  to  say  that  it 
lias  in  fact  been  discovered  since  the  former  trial ;  that,  by 
the  use  of  reasonable  diligence,  it  could  not  have  been  then 
obtained;  that  much  if  not  all  of  it  is  material  to  the  issue 
and  goes  to  the  merits  of  the  case  and  is  not  cumulative. 
Under  these  circumstances,  the  motion  for  a  new  trial 
ought  not  to  be  denied.  Dundee  Manufacuring  Co.  v.  Van 
Riper,  4  Vroom  152;  Kursheedt  v.  Standard  Bleacher^  Co., 
ante  p.  99. 

Let  the  rule  to  show  cause  b^  made  absolute. 


Sec.  8]  New  Trials  73? 


Section  8.     Effect  of  Statutes  Enumerating  Grounds. 

ST.  LOUIS  &  SAN  FEANCISCO  RAILROAD  COMPANY 

V.  WERNER. 

Supreme  Court  of  Kansas.    1904. 

70  Kansas,  190. 

The  opinon  of  the  court  was  delivered  by 

Johnston,  C.  J. :  An  action  was  brought  by  Emil  Wer- 
ner against  the  St.  Louis  &  San  Francisco  Railroad  Com- 
pany to  recover  damages  for  an  alleged  diminution  in  the 
value  of  his  property,  caused  by  the  construction  of  a 
railroad  on  a  city  street  in  front  of  the  property.  The 
railroad  company  answered  that  the  building  of  the  road 
in  the  street  was  legallj^  and  properly  done,  and  that  it 
did  not  interfere  with  ingress  to,  or  egress  from,  the  prop- 
erty, and  occasioned  the  plaintitf  no  injury.  A  trial  was 
had,  in  which  the  court  charged  the  jury  as  to  the  measure 
of  recovery,  and,  among  other  things,  suggested  that  if 
the  value  of  the  property  was  enhanced  by  the  building  of 
the  railroad,  the  increased  value  might  be  set  off  against 
any  injury  sustained  by  reason  of  the  obstruction  to  the 
entrance  to  the  property.  The  jury  found  that  the  value 
of  the  property  was  not  affected  by  the  building  of  the  rail- 
road, and  a  general  verdict  was  given  in  favor  of  the  de- 
fendant. 

Plaintiff  moved  for  a  new  trial,  assigning  all  the  stat- 
utory grounds,  including  the  one  last  mentioned  in  section 
306  of  the  code  (Gen.  Stat.  1901,  §  4754),  to-wit:  "Error 
of  law  occurring  at  the  trial,  and  excepted  to  by  the  partv 
making  the  application."  The  motion  was  overruled  as 
to  all  the  grounds  stated,  but  because  of  the  instruction 
authorizing  the  jury  to  counterbalance  damages  suffered 
with  benefits  received  the  court  granted  a  new  trial.  In 
disposing  of  the  motion  the  trial  court  remarked  that  there 
was  evidence  in  the  case  justifying  the  giving  of  the  in- 
struction, if  it  had  been  a  correct  statement  of  the  law, 
but  held  that  the  instruction  was  not  a  correct  declaration 
of  the  law,  and  granted  a  new  trial  for  that  reason  alone. 

It  appears  from  the  record,  however,  that  the  instruction 
T.  p.— 47   - 


738  Tkial  Pkactice  [Chap.  17 

in  question,  as  weL  ^s  tlie  entire  charge,  was  sjiven  to  the 
jury  vvithout  objection  or  exception.     Can  a  party  sit  by 
and  hcTLen  to  the  giving  of  an  instruction  without  objection 
or  exception,  and,  after  the  case  has  been  fully  submitted 
and  an  adverse  verdict  returned,  obtain  a  new  trial  because 
of  the  giving  of  such  instruction?     We  think  not.     A  new 
trial  m«y  be  allowed  only  on  the  grounds  specified  in  the 
statutes.     The  giving  of  an   erroneous   instruction  is   an 
error  of  law  occurring  at  the  trial ;  but  such  error  gives  no 
ground  for  setting  aside  a  verdict  unless  an  exception  has 
been  taken  to  the  giving  of  it.     The  grounds  for  a  new  trial 
provided  for  in  the  code  are  specific  and  exclusive.     The 
only  ground  having  any  application  to  the  question  before 
us  is  the  eighth  one  mentioned  in  section  306  of  the  code, 
to  wit:     "Error  of  law  occurring  at  the  trial,  and  excepted 
to  by  the  party  making  the  application."    To  make  such  an 
error  available  there  must  be  an  exception.     It  has  been 
said  that  "a  party  has  no  abstract,  inherent  right  to  a  new 
trial.     He  has  a  right  because  and  so  far  only  as  the  stat- 
ute gives  it  to  him  *  *  *.    If  he  fails  to  pursue  this  mode 
he  loses  the  benefit  of  any  errors  on  the  trial,  and  is  con- 
cluded as  to  all  matters  occurring  at  the  trial."     {Nesbit 
V.  Hines,  17  Kan.  316.) 

It  was  held  in  Sovereign  Camp  v.  Thiehaud,  65  Kan. 
332,  69  Pac.  348,  that  a  trial  court  cannot  set  aside  a  ver- 
dict and  grant  a  new  trial  arbitrarily  and  without  reason; 
and,  it  may  be  added,  it  can  never  be  done  except  for  a 
statutory  reason.  In  PuhlisJiing  House  v.  Heyl,  61  Kan. 
634,  60  Pac.  317,  it  was  held  that  statutory  remedies  and 
methods  supersede  previously  existing  ones,  and,  the  legis- 
lature having  provided  a  method  for  obtaining  a  new  trial, 
a  party  desiring  one  must  conform  to  the  prescribed  re- 
quirements. Since  the  plaintiff  took  no  exception  to  the 
instruction  given,  he  is  deemed  to  have  acquiesced  in  it; 
and,  assuming  that  it  was  erroneous,  the  lack  of  exception 
made  the  error  unavailable  and  afforded  no  ground  for  set- 
ting aside  the  verdict  and  granting  a  new  trial.  {Dar- 
rance  v.  Preston,  18  Iowa,  396;  Valerius  v.  Richard,  57 
Minn.  443,  59  N.  W.  534;  Hayne,  New  Trial  &  App.  <§  §  7, 
127.) 

To  overcome  this  omission  jjlaintiff  calls  attention  to  a 
recital  in  the  case  made  that  it  contains  all  the  pleadings 


Sec.  8]  New  Trials  739 

and  preceedings,  ''together  with  all  the  instructions  given 
by  the  court  and  the  objections  made  by  either  party,  to- 
gether with  all  rulings  of  the  court  and  all  papers  filed 
in  said  case  necessary  to  present  the  question  raised  and 
enable  the  supreme  court  to  pass  upon  one  question  raised 
in  the  record,  to  wit:  The  giving  by  the  court  of  the  in- 
struction complained  of  by  the  plaintiff,  and  for  the  giving 
of  which  a  new  trial  was  granted."  The  recital  does  not 
affect  the  question  under  consideration.  The  question 
whether  the  giving  of  the  instruction  was  a  ground  for  a 
new  trial  is  presented,  and  assuming  that  the  record  con- 
tains all  that  it  is  said  to  contain,  the  question  remains : 
Did  the  giving  of  an  erroneous  instruction,  without  objec- 
tion or  exception,  warrant  the  granting  of  a  new  trial  ? 
We  think  not;  and,  therefore,  the  order  granting  a  new 
trial  must  be  reversed,  and  the  cause  remanded  with  in- 
structions to  enter  judgment  for  the  plaintiff  in  error. 
All  the  justices  concurring. 


VALERIUS  V.  RICHARD. 

Supreme  Court  of  Minnesota.    1894. 

57  Minnesota,  443. 

Collins,  J.  At  the  trial  of  this  cause,  at  the  request  of 
defendants'  counsel,  the  court  plainly  charged  the  jury 
that,  if  they  found  a  certain  fact  from  the  evidence,  the 
defendants  could  not  be  held  liable  upon  the  note  in  suit. 
To  this,  counsel  for  plaintiff  took  no  exception,  nor  was 
there  even  a  suggestion  that  it  was  erroneous.  The  ver- 
dict being  for  defendants,  a  motion  to  set  it  aside,  and  for 
a  new  trial,  was  made  by  plaintiff's  attorneys,  on  two 
grounds, — those  specified  in  1878,  G.  ch.  66,  §  253,  subd. 
5th  and  7th.  Subsequently,  and,  as  stated  by  the  court  in 
its  order,  solely  because  there  was  no  evidence  which  war- 
ranted that  part  of  the  charge  referred  to  above,  plaintiff's 

motion  was  granted. 

********** 

The  majority  are  of  the  opinion  that,  in  civil  actions,  the 


740  Trial  Practice  [Cliap.  17 

power  of  the  court  to  grant  new  trials  is  limited  to  the 
grounds  prescribed  in  section  253,  and  that  new  trials  for 
errors  of  law  can  only  be  granted  when  an  exception  has 
been  taken.  The  statutory  grounds  for  new  trials  are  ex- 
clusive. Practically,  this  has  oftentimes  been  held  in  this 
court,  especially  when  considering  motions  made  upon 
the  ground  that  errors  of  law  had  occurred  upon  the  trial, 
as  witness  the  Minnesota  cases  before  referred  to.  To 
permit  a  defeated  party  to  have  the  benefit  of  an  error  of 
law  not  excepted  to  would  be  giving  him  a  great  advantage ; 
and  here  we  are  asked  to  go  further,  and  allow  to  a  party 
who  made  no  objection  to  the  giving  of  the  erroneous  in- 
struction, and  thereby  actually  acquiesced  in  its  pertinency 
and  correctness,  the  benefit  of  the  error.  Manifest  in- 
justice would  be  the  result,  for,  had  even  a  suggestion  been 
made  that  the  court  was  not  justified  in  this  part  of  the 
charge,  we  have  no  doubt  prompt  correction  would  have 
followed.  Our  construction  of  the  statute  has  been  placed 
upon  others  substantialy  the  same.  See  Hayne,  New 
Trials,  ch.  1,  §7;  Id.  ch.  16. 

Order  reversed. 

Buck,  J.,  absent,  sick,  took  no  part. 

Canty,  J.  I  dissent.  Where  the  trial  court  has  mis- 
stated the  law  in  his  charge,  or  charged  propositions  of 
law  not  applicable  to  the  case,  and  he  is  of  the  opinion  that 
in  fact  the  jury  was  misled  thereby,  it  is  in  his  discretion 
to  grant  a  new  trial  though  no  exception  was  taken,  if,  in 
his  opinion,  the  taking  of  an  exception  would  not  have 
caused  him  to  change  his  mind  in  time  to  obviate  the  mis- 
take. In  such  a  case  the  losing  party  has  no  standing  at 
all,  as  a  matter  of  right.  It  is  merely  an  application  for 
equitable  relief,  addressed  peculiarly  to  the  discretion  of 
the  trial  court. 

In  New  York  this  is  carried  so  far  as  to  hold  that,  on 
review  at  the  general  term  of  the  rulings  of  the  judge  at 
the  trial,  the  want  of  an  exception  is  not  necessarily  fatal, 
but  the  general  term  may,  in  its  discretion,  reverse  for  er- 
ror not  saved  by  exception,  on  the  ground  that  it  is  not, 
strictly  speaking,  exercising  appellate  jurisdiction,  but  has 
all  the  discretionary  powers  of  the  trial  court.  Baylies. 
New  Trials  &  App,  125;  Standard  Oil  Co.  v.  Amazon  Ins. 
Co.,  79  N.  Y.  506;  Mandeville  v.  Marvin,   30   Hun.    282; 


Sec.  8]  New  Trials  741 

Maier  v.  Eomen,  4  Daly,  168;  Lattimer  v.  Hill,  8  Hun.  171 ; 
Ackart  v.  Lansing,  6  Hun.  476. 

It  is  also  in  tlie  discretion  of  the  trial  court  to  allow  an 
exception  after  the  jury  has  retired.  St.  John  v.  Kidfl, 
26  Cal.  267.  If  he  has  power  to  allow  an  exception  after 
the  proper  time  to  take  it,  he  has  power  to  consider  it  taken 
for  the  jourpose  of  a  new  trial. 

This  ground  for  new  trial  does  not  come  under  1878,  G.  S. 
ch.  66,  §  253,  subd.  7,  "Error  in  law  occurring  at  the  trial 
and  excepted  to  by  the  party  making  the  application, ' '  but 
under  the  first  subdivision  of  that  section,  ''Irregularity 
in  the  proceedings  of  the  court,  jury,  referee  or  prevailing 
party  or  any  order  of  the  court  or  referee  or  abuse  of  dis- 
cretion by  which  the  moving  party  was  prevented  from 
having  a  fair  trial." 

The  discretionary  power  exercised  by  the  court  below 
in  this  case  is  one  which  a  trial  court,  having  due  regard 
for  the  rights  of  the  prevailing  party  will  seldom  exercise. 
It  is  only  when  he  is  satisfied  that  in  fact  the  particular 
mistake  produced  a  wrong  result  and  that  the  failure  to 
except  did  not  prejudice  the  prevailing  party  and  where 
he  is  satisfied  that  his  rulings  would  have  been  the  same 
and  that  nothing  would  have  been  done  by  him  or  the  pre- 
vailing party  in  time  to  obviate  the  mistake  even  if  an  ex- 
ception had  been  taken.  Even  viewed  by  this  strict  rule  I 
cannot  see  that  the  order  granting  a  new  trial  was  an  abuse 
of  discretion,  and  hold  that  the  order  appealed  from 
should  be  affirmed. 

Since  the  above  was  written  the  majority  opinion  has 
been  re-written.  It  is  now  admitted  that  at  common  law 
it  was  in  the  discretion  of  the  trial  court  to  grant  a  new 
trial  for  errors  to  which  no  exception  was  taken,  but  it 
is  insisted  that  by  the  adoption  of  the  Code  this  discre- 
tionary power  has  been  cut  off.  It  has  seldom  before 
been  held  that  the  discretionary  power  of  a  trial  court  of 
general  jurisdiction  has  been  cut  off  by  the  Code.  The 
Code  is  a  mere  skeleton,  and  much  of  it  merely  declaratory 
of  the  common  law.  Especially  is  this  true  as  to  its  pro- 
visions regulating  practice.  We  do  not  look  to  it  for  the 
discretionary  powers  of  the  District  Court,  as  we  do  to 
the  justice  of  the  peace  practice  act  for  the  discretionary 
power  of  that  court.    On  the  contrary,  it  is  not  unusual  to 


742  Trial  Practice  [Chap.  17 

look  to  the  great  sources  of  authority  on  common  law  and 
equity  practice  to  ascertain  what  the  discretionary  powers 
of  our  District  Court  are. 

The  point  is  also  now  made  for  the  first  time  that  the 
motion  for  a  new  trial  was  not  made  on  the  grounds  stated 
in  the  first  sub-division  of  section  253,  but  on  those  stated 
in  the  fifth  and  seventh  subdivisions.  As  to  this  I  will  say 
many  able  judges,  in  times  past,  have  often  set  aside  ver- 
dicts on  their  own  motion,  even  before  the  ink  was  dry 
on  them,  and  without  any  motion  or  grounds  of  motion  be- 
ing made  or  stated  by  the  party  at  all;  and  the  right  to  do 
so  has  hardly  been  questioned.  At  common  law  the  trial 
court  had  the  ])ower  to  grant  a  new  trial,  no  matter  how  in- 
formal the  application  for  it  might  be,  or  how  much  the 
moving  party  had  waived  his  technical  rights  by  failing  to 
take  the  proper  exception,  or  to  put  the  proper  grounds,  or 
any  grounds  at  all,  in  his  motion.  When,  as  in  the  present 
case,  a  formal  motion  for  a  new  trial  is  made,  stating  the 
grounds,  it  will  not  be  presumed  that  it  was  granted  on 
any  grounds  except  those  stated.  It  must  affirmatively 
appear  that  it  was  granted  on  some  other  grounds  which 
it  does  in  this  case.  It  is  a  new  doctrine  that  a  trial  court 
of  general  jurisdiction  has  no  discretion  to  brush  aside 
technical  informalities,  and  prevent  injustice,  by  granting 
a  new  trial.  It  has  always  been  held  that  it  is  in  the  dis- 
cretion of  the  trial  court  to  see  that  injustice  was  not  done 
during  the  progress  of  a  trial,  or  afterwards,  before  the 
entry  of  judgment,  either  through  its  own  mistakes  or  the 
technical  laches  of  the  attorney.  To  sustain  the  position  of 
the  majority,  Ilayne,  New  Trial,  is  cited  several  times. 
This  work  is  devoted  exclusively  to  the  practice  as  estab- 
lished by  the  California  Code  and  decisions,  rarely  citing 
any  other  cases.  He  cites  no  case  which  sustains  their 
position.  They  cite  none,  and  I  am  able  to  find  none.  On 
the  contrary,  the  authorities  in  the  Code  states  agree  with 
the  common  law  on  this  question.  Thus,  in  Farr  v.  Fuller, 
8  Iowa,  347,  the  trial  court  granted  a  new  trial  for  errors 
in  i'^R  charge,  not  excepted  to.  The  supreme  court  held  it 
was  discretionary.  As  in  this  case,  the  evidence  was  not 
returned  on  appeal,  and  the  appellant  claimed  that  no  error 
appeared  in  the  charge;  but  the  supreme  court  held  that,  in 
favor  of  the  order  granting  a  new  trial,  it  would  be  pre- 


Sec.  8]  New  Teials  743 

sumed  that,  as  applied  to  the  evidence,  the  charge  was  er- 
roneous. It  is  also  held  in  Cheatham  v.  Roberts,  23  Ark. 
651,  that  it  is  in  the  discretion  of  the  trial  court  to  grant 
a  new  trial  for  error  not  excepted  to. 

The  point  is  also  now  made  that  section  254  provides 
that  when  the  motion  for  a  new  trial  is  made  on  the  fourth, 
fifth,  and  seventh  subdivisions  of  section  253,  "  it  is  made 
either  on  a  bill  of  exceptions  or  a  statement  of  the  case 
prepared  as  prescribed  in  the  next  section,  for  any  other 
cause  it  is  made  on  affidavit,"  and  that,  therefore,  this  by 
necessary  implication  cuts  off  the  common-law  practice, 
under  which  the  court  often  acted  on  its  own  knowledge  of 
what  took  place  in  its  presence  during  the  trial,  and  granted 
or  denied  a  new  trial  without  regard  to  whether  or  not  such 
knowledge  was  either  supported  or  contradicted  by  any 
such  affidavits.  If  this  was  purely  a  statutory  proceeding, 
the  position  of  the  majority  would  be  correct,  but  it  is  not 
a  mere  statutory  proceeding.  The  provision  that  in  some 
cases  a  motion  for  a  new  trial  shall  be  made  on  a  case  or 
bill  of  exceptions  and  in  others  on  affidavit,  is  simply  de- 
claratory of  the  common  law.  Such  statutes  do  not  cut  off 
^ther  common-law  remedies,  unless  such  other  remedies 
are  expressly  prohibited.  Thus,  on  the  principles  laid 
down  by  the  majority,  title  11  of  chapter  66,  prescribing 
the  practice  on  application  for  injunction,  and  providing 
only  for  the  temporary  writ  and  the  permanent  writ,  would, 
by  necessary  implication,  cut  off  the  old  equity  power  to 
issue  a  restraining  order  pending  the  motion,  but  the  con- 
trary practice  is  well  established  in  this  state.  On  the  same 
principle,  on  an  appeal  from  the  clerk  on  taxation  of  costs 
under  1878  G.  S.  ch.  67,  <^  8,  the  judge  who  tried  the  case 
could  not  look  into  the  proceedings  on  the  trial,  or  beyond 
the  affidavits  used  on  the  taxation.  But  the  contrary  prac- 
tice is  well  established.  The  judge  practically  disregards 
the  affidavits  on  the  question  of  materiality  when  the  wit- 
nesses were  sworn,  and  acts  on  his  own  knowledge  of  the 
proceedings  had  and  testimony  given  on  the  trial,  just  as 
he  did  at  common  law.  It  is  unnecessary  to  multiply  illus- 
trations. The  judge  who  tried  the  case  is  not  bound,  by 
virtue  of  the  statute,  to  know  as  little  about  the  case  after 
trial  as  the  average  juror  is  required  to  know  before  it. 
He  is  not  obliged  to  stultify  himself,  and  know  nothing  of 


744  Trial  Practice  [Chap.  17 

what  he  saw  or  heard  on  the  trial,  except  what  the  parties 
see  fit  to  state  to  him  in  affidavits. 

But  the  judge's  powers  and  the  applicant's  rights  are, 
in  this  respect,  very  different  questions.  The  moving  party 
not  only  fails  to  save  his  rights  for  review  in  the  appel- 
late court,  by  failing  to  make  them  appear  of  record,  and 
to  cover  them  in  his  grounds  of  motion,  but  he  also  runs 
the  risk  of  having  his  motion  denied  on  technical  grounds, 
merely,  by  the  trial  court,  which  it  usually  will  and  ought 
to  do.  But  notwithstanding  this,  in  furtherance  of  justice, 
the  trial  court  may  relieve  him  from  his  laches,  by  giving 
him  something  which  he  asked  for,  but  was  not  in  a  posi- 
tion to  demand  as  of  right.  And  when  it  affirmatively  ap- 
pears that  the  court,  in  granting  him  a  new  trial,  has,  in 
furtherance  of  justice,  intentionally  relieved  him  from  his 
technical  laches  and  omissions,  it  is  merely  a  question 
whether  or  not,  on  common-law  principles,  it  has  abused 
its  discretion.    In  this  case  it  seems  to  me  that  it  has  not. 


BOTTINEAU  LAND  &  LOAN  COMPANY  V.  HINTZE. 

Supreme  Court  of  loiva.    1911. 

150  Iowa,  646. 

Action  at  law  on  a  promissory  note.  After  both  parties 
had  offered  their  evidence  and  rested  plaintiff  moved  for 
a  directed  verdict  on  the  ground  that  there  was  a  failure 
of  proof  of  the  matters  pleaded  in  defense  to  the  note.  This 
motion  was  sustained,  and  a  directed  verdict  returned  for 
plaintiff  for  the  amount  of  its  demand.  Thereafter  and 
within  three  days  defendant  filed  a  motion  for  a  new  trial, 
assigning  as  reasons  therefor  errors  of  the  court  in  hold- 
ing there  was  no  evidence  to  sustain  the  defense  pleaded, 
as  well  as  in  numerous  other  rulings  with  reference  to  the 
pleadings  and  the  admission  and  rejection  of  evidence. 
The  trial  court,  after  due  consideration,  sustained  the  mo- 
tion, set  aside  the  verdict,  and  ordered  a  new  trial,  ac- 
companying tlio  ruling  by  a  written  statement  that  some 
of  the  material  evidence  had  escaped  its  attention  until 


Sec.  8]  New  Trials  745 

the  same  had  been  transcribed  after  the  verdict  was  re- 
turned, and  that,  upon  a  re-examination  of  the  testimony,  it 
was  of  the  opinion  that  the  issues  should  have  been  sub- 
mitted to  the  jury.  From  this  ruling,  the  plaintiff  appeals. 
— Ajjirmed. 

Weaver,  J.  *  *  * 

1.  Counsel  for  plaintiff  make  the  point  that  a  motion 
for  a  new  trial  will  not  lie  after  a  directed  verdict  of  the 
jury  has  been  received,  and  that  to  sustain  such  a  motion 
is  reversible  error,  even  though  the  order  directing  the 
verdict  was  erroneously  made.  A  ''new  trial"  is  defined 
by  Code,  section  3755,  to  be  a  re-examination  in  the  same 
court  of  an  issue  of  fact  or  some  part  or  portion  thereof 
after  a  verdict  by  the  jury,  report  of  referee,  or  a  decis- 
ion of  the  court.  The  objection  raised  by  the  appellant 
seems  to  be  grounded  in  the  thought  that  a  directed  verdict 
is  not  a  ''verdict  of  a  jury"  within  the  meaning  of  this 
statute,  and  that  "decisions  by  the  court"  which  may  be 
questioned  in  motions  for  a  new  trial  include  only  such  as 
are  made  by  a  court  in  the  trial  of  issues  without  a  jury. 
In  other  words  it  is  argued  that  an  error  in  directing  a 
verdict  can  be  corrected  only  upon  appeal.  We  think  this 
contention  requires  an  altogether  too  narrow  construction 
of  the  statute,  and  tliat  the  establishment  of  such  a  rule 
would  tend  to  prolong  litigation,  and  increase  its  hazard 
and  uncertainty.  There  is  nothing  inhering  in  our  system 
of  procedure  and  practice  which  forbids  the  exercise  by  a 
trial  court  of  power  to  correct  its  own  error  where  the  mis- 
take is  discovered  and  the  correction  made  at  the  same 
term,  and  while  the  parties  and  the  subject-matter  of  con- 
troversy are  still  within  its  jurisdiction.  Chapman  v. 
Allen,  Morris,  23;  Railroad  Co.  v.  Estes,  71  Iowa,  605; 
Brace  v.  Grady,  36  Iowa,  352.  The  statute  pro^^des  for 
new  trials  after  a  verdict  by  a  jury.  It  does  not  attempt  to 
classify  verdicts  or  draw  any  distinction  between  those 
returned  by  direction  of  the  court  and  those  which  are  not, 
and  we  see  nothing  in  the  nature  of  the  case  to  compel 
the  court  to  ingraft  such  an  exception  upon  the  rule  as 
laid  do\\Ti  by  the  Legislature.  Wlien  the  court  submits 
an  issue  to  a  jury  with  erroneous  instructions  that  as  a 
m fitter  of  law  plaintiff  has  failed  to  make  a  case  or  that 
defendant  has  failed  to  sustain  his  defense,  thereby  com- 


746  Trial  Peactice  [Chap.  17 

pelling  a  particular  verdict,  no  good  reason  exists  why  that 
error  may  not  be  taken  advantage  of  on  motion  for  a  new 
trial  precisely  the  same  as  if  the  verdict  had  been  actually 
or  presumably  affected  by  the  erroneous  exclusion  of  ma- 
terial evidence  properly  offered  on  the  trial.  The  cases 
cited  by  appellant  might  be  considered  in  point  were  we 
to  recognize  the  distinction  which  counsel  draw  between 
verdicts  generally  and  directed  verdicts,  but  this  we  can 
not  do,  and  we  need  not  stop  to  consider  what  would  be  the 
proper  practice  in  the  absence  of  statutory  regulation.  It 
has  frequently  been  held  that  power  to  grant  new  trials 
is  inherent  in  the  court,  and  that  statutes  such  as  ours  do 
not  abrogate  or  limit  judicial  authority  in  that  respect. 
See  cases  collected  in  29  Cyc.  722.  Were  it  necessary  to 
look  beyond  the  provisions  of  our  own  statute  and  consult 
precedents  from  other  states,  they  appear  to  be  in  sub- 
stantial accord  with  the  conclusion  here  announced.  Bear- 
ing in  that  direction,  see  Railroad  Co.  v.  Goodrich,  38  Kan. 
224  (16  Pac.  439) ;  Chambers  v.  Granfzon,  7  Bosw.  (N.  Y.) 
414;  Hinote  v.  Simpson,  17  Fla.  444;  29  Cyc.  752. 

There  was  no  reversible  error  in  setting  aside  the  di- 
rected verdict,  and  the  order  appealed  from  is  affirmed. 


Section  9.    On  Court's  Own  Motion. 

FORT  WAYNE  &  BELLE  ISLE  RAILWAY  COMPANY 
V.  WAYNE  CIRCUIT  JUDGE. 

Supreme  Court  of  Michigan.     1896. 

110  Michigan,  173. 

Montgomery,  J.  One  Emma  L.  Long  brought  an  action 
against  the  relator  for  personal  injury,  and,  on  a  trial 
before  a  jury,  recovered  a  verdict  of  $800.  The  respondent, 
deeming  this  award  insufficient,  set  aside  the  verdict,  and 
ordered  a  new  trial.  The  relator  asks  for  a  writ  of  man- 
damus directing  that  this  order  be  set  aside. 

The  counsel  for  relator  concede  that  the  court  might,  for 


Sec.  9]  New  Trials  747 

an  error  of  its  own  commission  on  the  trial,  order  a  new 
trial  on  its  own  motion,  but  contend  that  the  court  has  no 
such  control  over  verdicts  of  juries,  and  can  only  vacate 
such  verdicts  on  application  of  one  of  the  parties.  We 
think  the  practice  in  this  State  has  been  otherwise,  from 
its  earliest  history,  and  although  the  exercise  of  this  power 
has  been  very  rare,  there  have  been  instances  of  it.  That 
these  instances  must,  of  necessity,  be  infrequent,  naturally 
results  from  the  recognized  impropriety  of  a  trial  judge 
interposing  his  own  judgment,  as  against  that  of  a  jury, 
except  in  a  clear  case.  But  in  such  case  the  court  possesses 
the  power,  at  common  law,  to  grant  a  new  trial  on  its  own 
motion;  and  in  our  opinion  the  power  is  not  limited  to 
cases  where  the  error  is  that  of  the  court,  or  where  there 
is  misconduct  of  the  jury,  as  contended  by  relator's  coun- 
sel, and  as  appears  to  have  been  held  by  the  supreme  court 
of  Texas  in  Lloyd  v.  Brinck,  35  Tex.  1.  As  sustaining  the 
broader  power,  as  a  common-law  power,  see  2  Thomp. 
Trials,  §  2711,  and  cases  cited, — particularly.  State  v. 
Adams,  84  Mo.  313. 

Having  determined  that  Judge  Donovan  had  the  power 
to  set  aside  this  verdict,  it  follows  that  his  discretion  must 
control  his  action,  except  in  a  case  of  clear  abuse  of  such 
discretion,  which  we  do  not  find  in  this  case. 

The  writ  will  be  denied. 

Hooker  and  Moore,  JJ.,  concurred.  Long,  C.  J.,  did  not 
sit.  Grant,  J.,  took  no  part. 


HENSLEY  V.  DAVIDSON  BROTHERS  COMPANY. 

Supreme  Court  of  loiva.      1907. 

135  Iowa,  106. 

Ladd,  J.  The  law  of  the  case  was  settled  on  the  former 
appeal  (103  N.  W.  975) ;  and,  whether  right  or  wrong,  that 
ruling  in  so  far  as  applicable  to  this  case  is  a  part  of  the 
irrevocable  past.  That  adjudication  is  binding  on  the 
parties,  and  it  was  the  imperative  duty  of  the  district 
court  to  follow  it.       The  evidence  was  substantiallv  the 


748  Tkial  Practice  [Chap.  17 

same  as  that  introduced  on  the  former  trial;  the  only  dif- 
ference being  that  jDlaintiff  testified  that  she  saw  the  de- 
fendant's team  before  getting  out  of  the  wagon  to  go  to 
the  depot,  concerning  which  no  inquiry  had  been  made 
before,  and  some  variance  in  McDaniel's  testimony  bear- 
ing on  his  credibility  as  a  witness.  The  records  differ  in 
no  important  particulars,  such  as  might  be  persuasive  that 
a  different  conclusion  with  reference  to  the  submission  of 
the  cause  to  the  jury  should  be  reached. 

No  objections  or  rulings  of  any  kind  prior  to  the  sub- 
mission of  the  cause  to  the  jury  are  to  be  found  in  the  rec- 
ord, and  no  exceptions  to  the  instructions  were  saved. 
Nevertheless,  when  the  jury  returned  into  court  with 
a  verdict  for  the  plaintiff,  the  court  ''immediately 
upon  reading  said  verdict,  on  its  own  motion,"  set 
it  aside.  Plad  this  been  done  to  correct  some  ruling  in  the 
course  of  the  trial  not  necessary  to  challenge  by  motion  in 
order  to  be  renewed,  a  different  question  would  be  pre- 
sented; but  nothing  previous  had  occurred  to  which  the 
able  counsel  on  either  side  had  thought  it  worth  while  to 
save  an  exception.  The  ruling  must  have  been  owing  to 
some  supposed  error  lurking  in  the  verdict  which  might 
have  furnished  the  basis  of  a  motion  for  new  trial  by  the 
party  aggrieved.  An  omission  to  so  raise  it  would  have 
been  a  waiver.  For  all  that  appears  from  the  record,  such 
might  have  been  defendant's  purpose.  Our  statute  enum- 
erates the  grounds  on  which  new  trials  shall  be  granted  on 
application  of  the  aggrieved  party.  Section  3755,  Code. 
But  there  is  no  provision  in  the  Code  relating  to  orders  of 
this  kind  on  the  court's  own  motion.  That  such  right  ex- 
ists, however,  is  indisputable.  It  is  one  of  the  inherent 
powers  of  the  court  essential  to  the  administration  of  jus- 
tice. In  Rex  V.  Goiigli,  2  Doug.  791,  Lord  Mansfield  de- 
clared that,  even  though  too  late  for  a  motion,  if  enough 
appeared,  the  court  could  grant  a  new  trial,  and  in  Rex  v. 
Atkinson,  5  Term  R.  437,  note,  is  quoted  as  saying  that, 
though  too  late  for  a  motion,  "if  the  court  conceive  a  doubt 
that  justice  is  not  done,  it  is  never  too  late  to  grant  a  new 
trial."  In  Rex  v.  Bolt,  5  Term  R.  436,  Lord  Kenyon,  said 
he  well  remembered  Rex  v.  Gough,  "where  the  objection 
to  the  verdict  was  taken  by  the  court  themselves,"  and 
Buller  J.,  observed,  in  concurring,  that  "after  four  days 


Sec.  9]  New  Trials  749 

the  party  could  not  be  heard  on  motion  for  new  trial,  but 
only  in  arrest  of  judgment;  but  if,  in  the  course  of  that  ad- 
dress, it  incidentally  appear  that  justice  has  not  been 
done,  the  court  will  interpose  of  themselves."  In  Weber 
V.  Kirkendall,  44  Neb.  766  (63  N.  W.  35),  it  is  said  that  the 
power  of  courts  of  general  jurisdiction,  in  the  correction 
of  errors  committed  by  them,  '*is  exercised,  not  alone  on 
account  of  their  solicitude  for  the  rights  of  litigants  but 
also  in  justice  to  themselves  as  instruments  provided  for 
the  impartial  administration  of  the  law."  And  such  is 
the  view  generally  entertained  by  the  courts  in  this  coun- 
try. Allen  V.  Wheeler,  54  Iowa,  628;  Ellis  v.  Gmshurg, 
163  Mass.  143  (39  N.  E.  800);  Standard  Milling  Co.  v. 
White  Line  Central  Transit  Co.,  122  Mo.  258  (26  S.  W. 
704) ;  State  ex  rel.  Henderson  v.  McCrea,  40  La.  Ann.  20 
(3  South.  380) ;  Bank  of  Willmer  v.  Laivler,  78  Minn.  135 
(80  N.  W.  868) ;  Com.  v.  Gabor,  209  Pa.  201  (58  Atl.  278) ; 
Thompson,  Trials,  2411;  State  ex  rel.  Brainerd  v.  Adams, 
84  Mo.  310. 

In  the  last  case  the  court,  in  upholding  the  power,  per- 
tinently inquired:  "If  the  court  commits  a  palpable  error 
in  an  instruction  to  the  jury,  or  witnesses  misconduct  of 
members  of  the  jury,  which,  on  motion,  would  authorize 
it  to  set  aside  the  verdict,  shall  it  on  account  of  the  ignor- 
ance or  timidity  of  the  aggrieved  party  which  prevents  him 
from  moving  in  the  matter,  render  an  unjust  judgment  on 
the  verdict  If  the  jury  find  a  verdict  palpably  against  the 
law  as  declared  by  the  court,  is  it  powerless  to  maintain  its 
own  dignity  and  self-respect,  unless  some  one  who  feels 
aggrieved  shall  move  in  the  matter? 

In  several  of  the  States  the  grounds  on  which  the  courts 
may  act  on  their  own  motion  in  granting  a  trial  are  speci- 
fied by  statute  construed  by  the  courts  to  exclude  all 
others!!  Townley  v.  Adams]  118  Cal.  382  (50  Pac.  550) ; 
Clement  v.  Barnes,  6  S.  D.  483  (61  N.  W.  1126) ;  State  ex 
rel.  Brainerd  v.  Adams,  supra.  Wliere  the  authority  is 
found  in  the  statutes  the  consensus  of  opinion  seems  to  be 
that  the  ruling  must  be  entered  promptly  upon  the  return 
of  the  verdict.  Clements  v.  Barnes,  supra;  Gould  v.  Ele- 
vator Co.,  2  N.  D.  216  (50  N.  W.  969).  See  Long  v.  King- 
fisher Co.,  5  Old.  128  (47  Pac.  1063)  ;  14  Ency.  P.  &  P.  932. 
And  several  courts  have  indicated  without  deciding  that 


750  Trial  Practice  [Chap.  17 

the  order  must  be  entered  within  the  time  within  which  a 
motion  for  new  trial  must  be  filed.  That  a  motion  there- 
for is  pending  will  not  deprive  the  court  of  the  power  to 
order  a  new  trial  on  grounds  not  raised  therein.  This 
must  necessarily  be  so,  for  one  of  the  controlling  reasons 
for  the  existence  of  the  power  is  to  enable  the  court  to 
guard  the  rights  of  parties,  who,  for  some  cause,  have 
proven  unable  to  jDrotect  themselves,  and  another  to  en- 
able the  court  to  correct  its  errors  rather  than  wait  for 
this  to  be  done  by  the  Appellate  Court.  But  resort  to 
this  power  will  rarely  be  required,  and  it  should  be  exer- 
cised with  great  caution  and  in  aggravated  cases  only. 
Ample  provisions  are  to  be  found  in  the  Code  of  Pro- 
cedure for  the  protection  of  litigants  on  their  own  appli- 
cation, and  for  the  court  to  interpose,  without  affording 
the  defeated  party  an  opportunity  to  elect,  whether  he  will 
accept  the  result,  lays  it  open  to  the  suspicion  of  partisan- 
ship. It  is  preferable  to  leave  something  to  the  attor- 
neys engaged  in  the  litigation. 

Especially  was  this  true  in  the  case  at  bar,  as  judgment 
therein  for  the  defendant  on  a  directed  verdict  had  been 
reversed  by  this  court,  and  the  evidence  held  to  be  such  as 
to  require  that  the  issues  be  submitted  to  the  jury.  Of 
what  force  is  the  opinion  of  this  court  that  a  case  is  made 
out  for  the  jury  if  the  district  court  can  evade  the  ruling 
by  setting  aside  the  verdict  when  returned,  and  even  then 
with  the  scant  consideration  evidenced  by  not  waiting  for 
objection  by  the  losing  party?  If  this  can  be  done  once, 
it  may  be  repeated,  and  through  orders  granting  new  trials 
the  effect  of  the  decision  entirely  obviated.  The  rule 
which  precludes  this  court  from  reviewing,  revising,  or  re- 
versing a  decision  on  a  former  appeal  is  equally  binding 
on  the  district  court.  McFall  v.  Raihvay,  104  Iowa,  50; 
Bahcoch  v.  Railway,  72  Iowa,  199;  Garretson  v.  Ins.  Co., 
92  Iowa,  295 ;  Burlington,  Cedar  Rapids  (&  N.  R.  Co.  v.  Dey, 
89  Iowa,  24. 

If,  then,  a  new  trial  was  granted  on  the  same  ground  on 
which  a  verdict  for  defendant  was  directed  on  the  former 
trial,  tlie  ruling  cannot  be  sustained.  Upon  great  consid- 
eration this  court  held  in  Meyer  v.  Houch,  85  Iowa,  319, 
that  the  trial  judge  should  direct  a  verdict  whenever,  con- 
sidering all  the  evidence,  it  would  be  his  duty  to  set  aside 


Sec.  10]  New  Trials  751 

the  verdict  if  returned  in  favor  of  the  party  upon  whom 
the  burden  of  proof  rested.  The  converse  of  this  prop- 
osition necessarily  follows ;  that  is,  a  new  trial  ought  not 
to  be  granted  when  the  evidence  in  favor  of  the  party  hav- 
ing the  burden  of  proof  is  such  that  the  cause  should  be 
submitted  to  the  jury.  On  the  former  appeal  we  held 
that  the  cause  should  have  been  submitted  to  the  jury,  and 
this  in  effect  was  an  adjudication  that  a  verdict,  if  re- 
turned for  plaintiff,  would  have  such  support  in  the  evi- 
dence as  to  preclude  the  granting  of  a  new  trial  on  that 
ground  alone.  Any  question  of  presumption  ordinarily 
indulged  in  favor  of  the  ruling  of  the  trial  judge  or  discre- 
tion in  the  matter  of  granting  new  trials  is  obviated  by 
the  record.  The  record  is  conclusively  presumed  to  con- 
tain everything  essential  to  the  determination  of  all  points 
raised  in  argument.  McGilUvary  Bros.  v.  Case,  107  Iowa, 
17 ;  King  v.  Hart,  110  Iowa,  618. 

The  order  is  reversed  and  the  cause  remanded  for  judg- 
ment on  the  verdict. — Reversed. 


Section  10.      Discretion  of  Court. 

LOFTUS  V.  METROPOLITAN  STREET  RAILWAY 
COMPANY. 

Supreme  Court  of  Missouri.      1909. 
220  Missouri,  470. 

Graves,  J.  *     *     * 

********** 

*  *  *  After  verdict  was  returned  the  defendant  filed 
its  motions  for  new  trial  and  in  arrest  of  judgment,  which 
motions  were  by  the  court  sustained  by  an  order  of  record 
in  this  language:  ''Now  on  this  day  it  is  ordered  by  the 
court  that  the  motion  for  a  new  trial  and  motion  in  arrest 
of  judgment  be  and  the  same  are  hereby  sustained  because 
the  court  erred  in  giving  instruction  *No.  One  P.'  to  which 
the  plaintiff  excepts." 


752  Trial  Practice  [Chap.  17 

11.  The  further  contention  is  made  that  this  court 
sliould  not  disturb  the  discretion  exercised  by  the  trial 
court  in  granting  the  new  trial.  In  other  words,  that  the 
granting  of  a  new  trial  rests  within  the  sound  discretion 
of  the  trial  court.  In  the  broad  sense,  the  granting  of  a 
new  trial  does  rest  within  the  sound  discretion  of  the  trial 
judge,  and  this  discretion,  like  all  judicial  discretions, 
should  not  be  disturbed  when  properly  exercised.  We  are 
cited  to  the  recent  cases  of  Rodan  v.  Railroad,  207  Mo.  1. 
c.  407,  and  Seeger  v.  Silver  Co.,  193  Mo.  1.  c.  407,  as  stating 
correct  rules  upon  the  question. 

In  the  latter  case.  Judge  Marshall  said:  "The  rule  is 
now  well  settled  in  this  State  that  this  court  will  not  re- 
verse the  action  of  a  trial  court  in  granting  one  new  trial, 
unless  the  .case  is  such  that  no  verdict  in  favor  of  the  party 
to  whom  the  new  trial  is  thus  granted,  could,  under  any 
circumstances,  be  permitted  to  stand." 

And  in  the  former.  Judge  Lamm  said:  "In  the  first 
place,  in  limine,  it  must  be  assumed  as  a  commonplace  of 
the  law,  arising  to  the  level  of  an  axiom,  that  the  granting 
of  a  new  trial  rests  within  the  sound  discretion  of  the  trial 
court;  and  its  action  in  that  behalf  will  not  be  disturbed 
on  appeal  unless  it  appears  that  its  discretionary  power 
was  abused,  i,  e.,  exercised  in  an  arbitrary  or  improvident 
manner.  (R.  S.  1899,  sec.  800;  and  see  first  note  under 
that  section,  Ann.  Stat.  1906,  761,  where  the  authorities 
are  gathered.) " 

These  announcements  must  be  taken  in  the  light  of  the 
facts  of  the  cases.  In  the  Seeger  case  the  trial  court  had 
sustained  a  demurrer  to  plaintiff's  testimony  and  thereby 
forced  a  nonsuit.  Motion  was  made  to  set  aside  the  non- 
suit and  that  motion  sustained  by  the  court  nisi,  from 
which  order  the  defendant  appealed.  Upon  such  an  ap- 
peal Judge  Marshall  used  the  language  above  quoted.  It 
must  be  noted  tliat  the  sole  question  before  the  trial  court 
and  this  court  was  the  sufficiency  of  the  evidence  to  make 
a  case  for  plaintiff.  At  first  blush,  the  trial  court  thought 
not,  but  upon  considering  the  motion  to  set  aside  the  non- 
suit reached  a  different  conclusion.  The  discretion  exer- 
cised then  was  one  as  to  the  facts,  and  not  one  purely  and 
simply  of  law.  So,  too,  in  the  Rodan  case.  The  trial 
court  concluded,  upon  motion  for  new  trial  filed  by  defend- 


Sec.  10]  New  Trials  753 

ant,  that  it  had  erred  in  giving  a  certain  instruction,  which 
instruction  should  not  have  been  given  in  view  of  certain 
facts  shown  in  the  trial.  In  other  words,  the  court  had  in-' 
structed  the  jury  that  in  the  absence  of  evidence  that  the 
deceased  did  not  look  and  listen  for  an  approaching  car, 
then  the  jury  were  at  liberty  to  presume  that  he  did  look 
and  listen.  A  witness  for  plaintiff,  and  the  only  eye-wit- 
ness, had  testified  in  effect  that  he  saw  deceased  leave  the 
sidewalk  and  go  on  across  to  the  railroad  track,  paying 
no  attention  to  the  approaching  car.  Judge  Lamm's  re- 
marks were  induced  by  this  state  of  affairs.  The  ques- 
tion before  the  trial  court,  and  upon  which  the  judicial  dis- 
cretion was  exercised,  was  a  mixed  question  of  law  and 
fact.  The  trial  court  concluded  that  in  view  of  the  facts 
testified  to  by  this  witness  there  was  positive  testimou}^ 
that  deceased  did  not  look  or  listen  before  going  upon  the 
railroad  track,  and  therefore  there  was  no  place  for  an  in- 
struction upon  the  ground  of  presumption.  So  that  in 
this  case  the  discretion  was  really  exercised  as  to  the  facts 
of  the  case.  Both  of  those  cases  announce  the  proper 
rule  in  cases  where  judicial  discretion  has  been  exercised 
as  to  the  facts  and  the  weighing  of  the  evidence  as  to  the 
facts.  In  such  cases  we  will  not  disturb  such  discretion 
in  a  case  wherein  there  is  sufficient  evidence  to  sustain  a 
verdict  in  favor  of  the  party  for  whom  such  discretion  has 
been  exercised.  But  these  cases  are  not  this  case.  Upon 
the  facts  of  the  case  at  bar  a  verdict  for  either  party  could 
be  sustained,  but  the  discretion  of  the  trial  judge  was  not 
directed  to  the  facts,  so  far  as  the  question  now  before  us 
is  concerned.  He  was  passing  judgment  upon  a  clear  ques- 
tion of  law,  and  we  have  concluded  that  his  judgment  on 
that  question  was  erroneous.  Wlien  the  judicial  act  is  direct- 
ed solely  to  a  question  of  law  and  the  act  is  erroneous,  it 
does  not  fall  within  the  rule  of  the  exercise  of  sound, judicial 
discretion.  There  is  no  discretion  as  to  the  law  of  a  case.  Nor 
can  there  be  an  exercise  of  a  sound  discretion  as  to  the  law 
of  a  case.  So  that  when  we  speak  of  the  granting  of  a 
new  trial  being  within  the  sound  discretion  of  the  trial 
judge,  we  have  no  reference  to  a  case  where  the  new  trial 
is  granted  solely  upon  the  ground  that  the  law  has  been 

erroneously  given,  when  in  fact  it  has  been  properly  given. 

»******♦»♦ 

T.  P.— 48 


754  Trial  Practice  [Chap.  17 

YORK  V.  STILES. 

Supreme  Court  of  Rhode  Island.      1899. 
21  Rhode  Island,  225. 

Assumpsit  on  book  account.  The  facts  are  fully  stated 
in  the  opinion.  Heard  on  petition  of  defendant  for  a  new 
trial.      New  trial  denied. 

Tillinghast,  J.  We  think  the  ancient  maximn  ^^de 
minimis  non  curat  Ze.<c"  may  well  be  applied  to  this  case. 
The  amount  involved  is  only  four  dollars.  The  action 
was  commenced  in  the  District  Court,  where  upon  trial  a 
decision  was  rendered  for  the  defendant.  It  was  then 
certified  to  the  Common  Pleas  Division  upon  plaintiff's 
claim  for  a  jury  trial.  When  the  case  came  on  for  trial 
the  defendant  did  not  appear,  and  a  default  was  entered, 
and  subsequently  the  court  assessed  the  plaintiff's  dam- 
ages at  the  sum  aforesaid.  The  case  is  now  before  us  on 
the  defendant's  petition  for  a  new  trial,  on  the  ground 
that  the  Common  Pleas  Division  erred  in  certain  rulings 
regarding  the  admission  of  evidence  in  connection  with  the 
assessment  of  damages  on  default.  We  think  the  peti- 
tion should  be  denied.  The  amount  involved  is  too  trifling 
to  warrant  the  court  in  sending  the  case  back  for  another 
trial.  Moreover,  whatever  the  result  of  a  new  trial  might 
be,  if  one  should  be  had,  it  is  manifest  that  it  would  be  to 
the  detriment  of  both  parties  to  have  one.  And  as  re- 
marked by  Ames  C  J.  in  Svonner  v.  Leland,  5  R.  I.  352,  in 
speaking  of  new  trials;  ''Neither  courts  of  law  or  equity 
when  exercising,  as  in  such  cases,  a  discretion,  exercise 
it  except  to  some  good  and  useful  end."  No  vital  ques- 
tion of  principle  is  involved.  The  only  dispute  in  the 
case  is  as  to  whether  the  defendant  had  the  right  to  de- 
duct from  the  plaintiff's  wages,  which  were  seven  dollars 
per  week,  certain  damages  alleged  to  have  been  caused  by 
her  in  running  the  "extractor"  in  the  defendant's  laun- 
dry. Such  a  dispute  about  such  an  insignificant  matter 
does  not  strongly  appeal  to  the  judicial  discretion  of  the 
court. 

In  Buddington  v.  Knowles^  30  Conn.  26,  which  was  a  pe- 


Sec.  10]  New  Teials  755 

tition  for  new  trial  on  the  ground  that  the  damages,  which 
the  jury  had  assessed  at  $66,  were  excessive,  Ellsworth,  J., 
in  delivering  the  opinion  of  the  court  said:  *'It  is  a  suf- 
ficient objection  to  granting  a  new  trial  for  excessive  dam- 
ages, that  the  verdict  is  onl}^  for  $66,  an  amount  too  trivial 
to  warrant  the  renewal  of  the  controversy,  unless  courts  of 
justice  are  kept  open  to  gratify  the  evil  passions  of  man- 
kind. To  grant  the  defendant's  request  will  be  to  punish 
the  defendant  himself,  were  it  certain  that  the  damages 
would  be  reduced  on  another  trial,  which,  however,  it  is 
Tiot,  either  as  a  matter  of  law  on  the  evidence  before  us, 
or  as  a  matter  of  fact.  Such  a  practice  we  cannot  en- 
courage, and  we  take  this  opportunity  to  say  that  a  new 
trial  in  such  cases  should  not  be  asked  for,  unless  the  case 
be  one  which  involves  something  more  than  a  trifling  sum 
of  money." 

In  Hyatt  v.  Wood,  3  Johns,  237,  the  court  said:  ''It  has 
frequently  been  decided  in  this  court,  that  in  cases  where 
the  damages  are  trifling,  a  new  trial  will  not  be  granted 
after  a  verdict  for  the  defendant,  merely  to  give  the  plain- 
tiff an  opportunity  to  recover  nominal  damages,  and  when 
no  end  of  justice  is  to  be  attained  by  it,  though  there  may 
have  been  a  misdirection  of  the  judge.  The  principle  stated 
by  the  judge  in  this  case  was  incorrect,  but  the  action  is  of 
too  little  importance  to  grant  a  new  trial  merely  for  that 
reason."  See  also  to  the  same  general  effect,  Macroiv  v. 
Hull,  1  Burr.  11;  Burton  v.  Thompson,  2  Burr.  664;  Flem- 
ing V.  Gilbert,  3  Johns,  520;  Hill.  N.  Tr.  2  ed.  483-4;  Rob- 
erts V.  Karr,  1  Taunt.  493. 

A  motion  for  a  new  trial  is  practically  an  appeal  to  the 
sound  discretion  of  the  court  to  prevent  a  material  and 
palpable  wrong.  And  it  is  never  to  be  granted  if  the 
court  can  see  that  substantial  justice  has  been  done,  not- 
withstanding irregularities  may  have  occurred.  Nor  is 
it  to  be  granted  when  the  failure  of  justice  has  not  been 
palpable;  nor  where  the  wrong  done,  however  palpable  it 
may  be,  is  trivial  in  extent.  16  Am.  &  Eng.  Ency.  L.  503. 
The  maxium  above  quoted,  however,  is  not  to  be  applied 
in  case  of  the  positive  and  wrongful  invasion  of  another's 
property  or  personal  rights.  Seneca  Road  Co.  v.  Rail- 
road Co.,  5  Hill,  170. 

Petition  for  new  trial  denied,  and  case  remitted  to  the 


756  Trial  Peactice  [Chap.  17 

rommon  Pleas  Division  with  direction  to  enter  judgment 
on  the  decision. 


NORTH  CENTER  CREEK  MINING  &  SMELTING 
COMPANY  V.  EAKINS. 

Supreme  Court  of  Kansas.       1880. 

23  Kansas,  317. 

The  opinion  of  the  court  was  delivered  by 

Brewer,  J.:  This  was  an  action  appealed  from  a  jus- 
tice of  the  peace,  for  labor  done  in  and  about  certain  zinc 
smelting  works.  The  question  was  as  to  the  liability  of 
the  defendant,  no  question  being  made  as  to  the  fact  of  the 
work  or  its  value.  The  verdict  was  against  the  defend- 
ant. Upon  a  motion  for  a  new  trial,  the  court  ruled  that 
it  should  be  granted,  upon  the  payment  within  thirty  days 
of  all  costs  in  the  district  court,  and  in  default  of  such  pay- 
ment, that  it  should  be  overruled,  and  judgment  entered 
on  the  verdict.       The  defendant  alleges  error. 

The  grounds  of  the  motion  for  a  new  trial  were,  that 
the  verdict  was  contrary  to  the  law  and  the  evidence,  that 
the  court  erred  in  admitting  testimony,  and  in  other  rul- 
ings. No  claim  was  made  on  account  of  accident,  sur- 
prise, or  newly-discovered  evidence.  The  claim  of  the 
defendant  therefore  was,  that  there  was  error  on  the  part 
of  the  court  or  jury  to  its  prejudice.  The  court,  by  sus- 
taining the  motion,  even  conditionally,  in  effect  found  that 
such  claim  was  correct ;  and  yet  it  refused  any  relief  to  de- 
fendant, except  upon  payment  of  costs.  Now  when  the 
claim  for  a  new  trial  is  based  upon  accident,  or  newly-dis- 
covered testimony,  grounds  which  concede  the  correctness 
of  the  trial  already  had,  there  is  often  fairness  and  justice 
in  requiring  a  payment  of  the  costs  of  such  trial  as  a  con- 
dition of  a  new  one.  For  if  the  victorious  party  is  with- 
out fault  and  the  proceedings  without  error,  it  is  a  hard- 
ship on  him  to  be  compelled  to  relinquish  what  he  has  ob- 
tained and  venture  upon  a  new  trial,  simply  on  account 
of  the  intervention  of  some  new  fact  in  behalf  of  his  op- 


Sec.  10]  New  Tkials  757 

ponent.  It  is  often  just  to  make  tlie  party  who  has  thus 
obtained  an  opportunity  to  relitigate  his  case,  pay  the 
fruitlessly  expended  costs  of  the  first  trial.  But  a  differ- 
ent rule  prevails  where  the  new  trial  is  claimed  and 
awarded,  not  on  account  of  the  intervention  of  some  new 
fact,  but  because  of  wrong  conduct  on  the  part  of  the  suc- 
cessful party,  or  because  the  court  or  jury  has  at  his  in- 
stance and  upon  his  solicitation  committed  error.  In  such 
case,  if  the  error  is  a  material  one,  the  moving  party  has  a 
clear,  legal  right  to  a  second  trial.  He  is  the  party  with- 
out fault,  and  his  adversary  the  wrongdoer;  and  the  new 
trial  should  as  a  rule  go  without  costs.  We  are  aware  of 
the  statute  which  provides  that  the  "costs  of  motions  and 
the  like  shall  be  taxed  and  paid  as  the  court  in  its  discretion 
may  direct."  (Comp.  Laws  1879,  p.  682,  §  588.)  We 
also  know  that  often  in  trials  both  parties  are  in  fact  in 
some  fault  and  the  motions  for  new  trials  cover  all 
grounds,  so  that  it  is  not  always  possible  to  determine 
upon  what  grounds  the  motion  is  sustained.  But  what 
we  have  suggested  is,  as  to  the  rules  which  should  control 
the  discretion  of  the  court  in  the  matter  of  costs  upon 
motions  for  new  trials.  Now  as  we  have  stated,  the  rul- 
ing of  the  court  was  an  exj)ression  of  its  opinion  that  there 
had  been  error  prejudicial  to  the  rights  of  defendant,  an 
opinion  with  which,  after  examining  the  record,  we  fully 
concur.  The  essential  facts  are,  that  a  tripartite  written 
agreement  was  entered  into  between  L.  D.  Boone,  the 
owner  of  certain  zinc  works,  the  defendant,  and  Louis 
Vogle,  and  Louis  Goes,  doing  business  under  the  name  of 
the  Consolidated  Zinc  Mining  &  Smelting  ComjDany,  by  the 
terms  of  which  Boone  was  to  put  his  works  in  repair  and 
lease  them.  The  defendant  was  to  furnish  zinc  ore  for 
smelting  and  the  C.  Z.  M.  &  S.  Co.  were  to  hire  all  needed 
employes  and  run  the  works,  smelting  the  ore  furnished  by 
the  defendant,  and  after  paying  one  stipulated  portion  of 
the  product  to  Boone  for  the  rent  of  the  works  and  another 
stipulated  portion  to  the  defendant  for  ore,  take  the  bal- 
ance for  its  compensation.  Evidently  from  the  terms  of 
this  agreement,  no  partnership  was  contemplated  between 
these  parties,  but  simply  an  arrangement  for  the  rent  of 
buildings  and  machinery  and  the  reduction  of  ore  to  min- 
eral.     So  the  court  .instructed  the  jury,  and  the  instruc- 


758  Trial  Practice  [Chap.  17 

tion  was  correct.  The  court  also  .correctly  instru-cted  as 
to  the  circumstances  under  which  one  not  in  fact  a  partner 
might  become  liable  as  partner  to  third  parties  by  reason 
of  his  conduct  in  respect  to  the  partnership  affairs,  and 
charged  that  if  the  plaintiff  did  not  at  the  time  of  doing 
the  work  understand  that  defendant  was  a  partner  or  re- 
sponsible for  the  work,  he  could  not  hold  the  defendant  un- 
less it  was  in  fact  a  partner.  Turning  now  to  the  testi- 
mony, we  find  the  plaintiff,  after  testifying  that  he  hired 
to  the  Consolidated  Zinc  Mining  &  Smelting  Company, 
stating,  "I  did  not  know  at  the  time  I  hired  with  Mr.  Vogle 
that  he  was  in  partnership  with  the  North  Center  Creek 
Mining  &  Smelting  Company,  nor  did  I  know  it  at  the 
time  I  brought  this  action."  Indeed,  the  defendant  was 
not  a  party  at  the  commencement  of  the  action,  but  made 
one  subsequently  by  amendment.  As  the  defendant  was 
not  in  fact  a  partner  and  as  the  plaintiff  did  not  suppose 
it  was  a  partner,  it  is  difficult  to  see  upon  what  ground  a 
recovery  against  it  can  be  sustained.  The  court  was 
right  in  ruling  that  it  was  entitled  to  a  new  trial,  and  the 
error  was  in  making  the  payment  of  costs  a  condition 
precedent.  It  should  have  been  granted  without  condi- 
tion. Without  fault  on  its  part  the  defendant  had  been 
brought  into  court  and  compelled  to  litigate  an  unjust  de- 
mand, and  should  not  have  been  required  to  pay  any  costs 
the  plaintiff  had  made  as  a  condition  of  protection  in  its 
defense. 

The  judgment  in  the  district  court  will  be  reversed,  and 
the  case  remanded  with  instructions  to  grant  a  new  trial. 

All  the  Justices  concurring. 


BROOKS  V.  SAN  FRANCISCO  &  NORTH  PACIFIC 
RAILWAY  COMPANY. 

Supreme  Court  of  California.      1895. 

110  California,  173. 

Searls,  C. — This  was  nn  action  to  recover  damages  sus- 
tained by  tlie  infant  plaintiff  for  personal  injuries  received 


Sec.  10]  New  Trials  759 

while  a  passenger  upon  the  railway  train  of  the  corpora- 
tion defendant. 

The  cause  was  tried  before  a  jury  and  a  verdict  rendered 
in  favor  of  plaintiff  for  five  thousand  dollars.  Judgment 
was  entered  thereon  February  26,  1894. 

Defendant  in  due  time  moved  for  a  new  trial,  which  was 
granted  "upon  the  payment  by  defendant  to  plaintiff  of 
the  sum  of  three  hundred  dollars  for  counsel  fees  and  ex- 
penses necessarily  incurred  in  said  motion."  This  order 
was  made  June  25,  1894. 

On  July  2^,  1894,  defendant  gave  notice  of  an  appeal 
to  this  court  from  the  order  of  the  court  below  granting  a 
new  trial  upon  the  condition  specified  in  the  order,  and, 
on  the  same  day,  gave  notice  of  an  appeal  from  final  judg- 
ment entered  in  the  cause  February  26,  1894. 

That  a  nisi  pritis  court  has  the  power  to  impose  terms 
as  a  condition  of  making  an  order  for  a  new  trial  is  too 
well  settled  to  need  argument  in  its  support. 

In  Rice  v.  GasMrie,  13  Cal.  54,  which  in  view  of  the  fact 
'hat  the  motion  was  founded  upon  errors  of  law  occurring 
^  it  the  trial,  and  hence  at  first  blush  would  seem  not  to  have 
been  a  case  involving  turpitude  on  the  part  of  the  losing 
party,  the  court  below  granted  a  new  trial  upon  condition 
that  the  moving  party  should  pay  the  costs. 

Upon  an  appeal  by  the  moWng  party  this  court,  speak- 
ing through  Baldwin,  J.,  said:  ''The  terms  upon  which  a 
court  will  grant  a  new  trial  are  peculiarly  a  matter  within 
its  discretion.  This  must  necessarily  be  so,  for  so  many 
reasons  relating  to  the  conduct,  management,  and  peculiar 
circumstances  of  the  trial  may  exist  that  it  would  be  im- 
possible to  prescribe  any  general  rules  on  the  subject.  If 
error  at  law  intervenes,  a  party  may  take  his  exceptions 
and  prosecute  his  appeal  without  motion  for  a  new  trial; 
but  if  he  makes  his  motim  and  relies  upon  that  for  redress 
against  an  improper  verdict,  he  must  subject  himself  to 
the  equitable  power  of  the  court. 

''The  verdict  may  have  gone  against  him  in  some  degree 
or  wholly,  by  his  own  neglect  or  default,  or  even  the  rulings 
of  law  be  chargeable  to  his  own  laches  or  want  of  diligence. 
In  sucli  cases  it  may  bo  proper  to  grant  him  a  new  trial, 
yet  only  upon  equitable  terms.      We  cannot  interfere  with 


760  Trial  Practice  [Chap.  17 

this  exercise  of  discretion  unless  upon  a  clear  showing  that 
it  has  been  abused,  or  that  the  terms  were  grossly  unrea- 
sonable." 

In  the  present  case  the  motion  for  a  new  trial  was  based, 
among  others,  upon  the  ground  of  the  **  insufficiency  of  the 
evidence  to  justify  the  verdict." 

This  is  a  ground  appealing  peculiarly  to  the  discretion 
of  the  trial  court.  And  wherever  the  conditions  are  such 
that  the  court  below  is  authorized  in  its  discretion  to  im- 
pose terms  as  a  condition  to  granting  a  new  trial,  this 
court  will  interfere  only  in  those  cases  where  it  mani- 
festly appears  that  there  has  been  an  abuse  of  such  discre- 
tion. 

The  following  cases  in  this  court  recognize  and  uphold 
the  right  of  the  trial  court  in  one  form  and  another  to  im- 
pose terms  and  conditions  in  granting  and  refusing  mo- 
tions for  new  trials:  Sherman  v.  Mitchell,  46  Cal.  578; 
Gillespie  v.  Jones,  47  Cal.  264;  Chapin  v.  Bourne,  8  Cal. 
294;  Harrison  v.  Peahody,  34  Cal.  178;  Dreyfous  v.  Adams, 
48  Cal.  131;  Benedict  v.  Cozzens,  4  Cal.  381;  Corher  v. 
Morse,  57  Cal.  301;  Gregg  v.  San  Francisco  etc..  By.  Co., 
59  Cal.  312;  Davis  v.  Southern  Pac.  Co.,  98  Cal.  13. 

In  the  case  last  cited  the  iury  had  found  a  verdict  in 
favor  of  plaintiff  for  fifteen  thousand  three  hundred  dol- 
lars.     Defendant  moved  for  a  new  trial. 

The  trial  court  made  an  order  that,  if  plaintiff  should 
consent  that  the  judgment  be  reduced  to  nine  thousand 
dollars,  the  new  trial  would  be  denied,  and  that  otherwise 
it  would  be  granted.  Plaintiff  consented  to  the  reduction, 
and  the  motion  was  thereupon  denied.  Defendant  ay> 
pealed  from  the  order. 

Counsel  for  appellant  attacked  the  power  of  the  court  to 
make  such  an  order,  and  contended  that  if  the  court 
thought  the  verdict  excessive  its  duty  was  to  grant  a  new 
trial. 

This  court,  speaking  through  McFarland,  J.,  after  ad- 
mitting that  the  position  of  appellant  was  a  strong  one, 
added:  ''But  whatever  might  be  considered  the  weight 
of  reason  and  foreign  authority  on  the  question  above 
stated,  if  it  were  it .9  integra  here,  the  right  of  a  court  to 
do  what  is  complained  of  in  the  case  at  bar  is  too  firmly  es- 


Sec.  10]  New  Trials  761 

tablished  in  this  state  by  a  long  line  of  decisions  to  be  now 
questioned." 

The  principle  involved  in  that  case  is  the  same  as  that 
underlying  the  present  one,  and  goes  to  the  power  of  the 
court  to  impose  terms  in  granting  and  refusing  motions 
for  new  trials. 

A  review  of  the  record  fails  to  disclose  any  basis  for  con- 
cluding that  there  was  an  abuse  of  discretion  in  imposing 
terms  as  a  condition  to  granting  the  motion  for  a  new  trial. 
It  follows  that  the  order  appealed  from  by  defendant 
should  be  upheld. 


COHEN  V.  KRULEWITCH. 

Appellate  Division  of  the  Supreme  Court  of 
Neiv  York.      1902. 

77  Appellate  Division,  126. 

Ingraham,  J.: 

The  action  was  brought  to  recover  commissions  for  pro- 
curing a  purchaser  of  certain  property  belonging  to  the 
defendant.  The  plaintiff  testified  that  he  was  employed 
by  the  defendant  to  procure  a  purchaser  of  this  property; 
that  he  procured  a  purchaser  therefor  upon  terms  satis- 
factory to  the  defendant;  that  the  defendant  subsequently 
refused  to  complete  the  purchase  and  thereby  the  plain- 
tiff became  entitled  to  his  commissions.  The  defendant 
denied  the  emplo}Tnent ;  denied  that  the  plaintiff  ever  pro- 
cured a  purchaser  of  the  property,  or  that  he  ever  prom- 
ised to  pay  him  any  commissions.  The  case  was  sub- 
mitted to  the  jury  who  found  a  verdict  for  the  plaintiff, 
whereupon  the  court,  on  motion,  set  aside  the  verdict  and 
ordered  a  new  trial  upon  the  ground  that  there  was  no  evi- 
dence that  the  purchaser  was  ever  ready  to  sign  the  con- 
tract to  purchase  the  defendant's  property  and  no  evidence 
that  the  contract  between  the  defendant  and  the  purchaser 
was  ever  in  fact  prepared,  and,  therefore,  no  evidence  that 
the  plaintiff  had  done  what  he  contracted  to  do — obtain  a 


762  Trial  Peactice  [Chap.  17 

person  who  was  ready  and  willing  to  make  an  exchange 
with  the  defendant  for  the  property  that  was  satisfactory 
to  the  defendant,  and  also  upon  the  ground  that  the  weight 
of  evidence  was  against  the  plaintiff,  and  as  the  plaintiff 
had  the  burden  of  proof  the  jury  should  have  found  for  the 
defendant  in  the  case  and  not  for  the  plaintiff. 

We  think  the  court  was  entirely  justified  in  setting  aside 
the  verdict  for  the  reason  assigned  by  the  trial  judge,  and 
that  the  jury  were  not  justified  upon  the  evidence  in  find- 
ing a  verdict  for  the  plaintiff.  The  plaintiff  insists,  how- 
ever, that  the  court  should  have  imposed  costs  upon  the 
defendant  as  a  condition  for  granting  the  motion  to  set 
aside  the  verdict.  Where  a  motion  is  made  to  set  aside  a 
verdict  upon  the  ground  that  the  plaintiff  has  failed  to 
prove  his  case,  there  is  no  rule  that  requires  that  costs 
should  be  imposed  as  a  condition  for  granting  a  new  trial. 
In  such  a  case  a  new  trial  is  not  granted  as  a  matter  of 
discretion,  but  as  a  matter  of  right,  and  we  do  not  think 
the  court  would  then  be  justified  in  imposing  costs  as  a 
condition  for  granting  a  new  trial.  Wliile  it  is  proper  for 
the  court  to  impose  costs  upon  granting  a  new  trial  where 
there  was  a  proper  case  for  the  submission  of  the  question 
to  the  jury,  but  where  for  some  reason  the  court  is  satis- 
fied that  the  verdict  was  not  a  fair  determination  of  the 
question  submitted  to  them  or  that  justice  requires  that 
the  case  should  be  submitted  to  another  jury,  this  is  not 
such  a  case.  Upon  this  record  we  think  the  court  below 
was  required  to  grant  a  new  trial  without  the  imposition  of 
any  costs  upon  the  defendant. 

It  follows  that  the  order  appealed  from  should  be  af- 
firmed, with  costs. 

Van  Brunt,  P.  J.,  O'Brien  and  McLaughlin,  JJ.,  con- 
curred; Hatch,  J.,  dissented. 

Order  affirmed,  with  costs. 


Sec.  10]  New  Trials  763 

STAUFFER  V.  READING. 

Supreme  Court  of  Pennsylvania.      1903. 
206  Pennsylvania  State,  479. 

Appeal  from  jury  of  view.      Before  Endlich,  J. 

From  the  record  it  appeared  that  the  city  of  Reading  ap- 
propriated one  and  one-half  acres  of  plaintiff's  land  for 
the  purpose  of  a  boulevard.  The  boulevard  was  so  lo- 
cated as  to  cut  off  three  acres  of  plaintiff's  land  to  the 
north,  leaving  about  seven  acres  to  the  south  of  the  boule- 
vard. 

Verdict  for  plaintiff  for  $3,295.83. 

On  a  rule  for  a  new  trial  the  court  made  the  following 
order: 

November  10,  1902.  The  rule  to  show  cause  is  dis- 
charged, on  condition  that  the  plaintiff  within  thirty  days 
from  the  date  of  entry  of  this  order  convey  to  the  defend- 
ant, for  park  purposes,  the  tract  h^ng  north  of  the  boule- 
^'ard;  otherwise,  upon  the  expiration  of  said  period,  the 
rule  to  become  absolute. 

Plaintiff  appealed. 

Opinion  by  Mr.  Justice  Mitchell,  July  9,  1903: 
The  granting  or  refusing  of  a  new  trial  except  for  causes 
like  errors  of  law  by  the  judge  or  misconduct  of  the  jury, 
where  it  may  be  matter  of  right,  is  an  exercise  of  judicial 
discretion  by  the  court  in  furtherance  of  right  and  justice 
according  to  the  circumstances  of  the  case.  Hence  it  is 
well  settled  that  the  court  may  impose  terms  upon  either 
or  both  of  the  parties  as  conditions  of  the  grant  or  refusal, 
and  the  latitude  allowed  to  the  discretion  of  the  court  to 
this  end  is  very  great.  As  each  case  must  be  determined 
on  its  own  circumstances  the  causes  cannot  all  be  specified 
or  enumerated  before  hand,  but  in  general  as  is  said  by 
the  most  prominent  writer  on  the  subject,  "it  may  be  safely 
asserted  that  no  case  can  occur  presenting  circumstances 
timely  addressed  to  the  discretion  of  the  court,  in  which 
the  rights  of  the  parties  may  not  be  fully  protected  by  the 


764  Trial  Practice  [Chap.  17 

imposition  of  conditions  meeting  the  exigency:"      Graham 
on  New  Trials,  610. 

Large  as  the  discretion  is,  however,  it  is  a  judicial  discre- 
tion and  must  be  used  with  reference  to  the  rights  involved 
in  the  controversy.  The  conditions  imposed  therefore 
must  have  some  direct  relation  to  the  issue  between  the 
parties  in  the  case. 

The  condition  complained  of  in  the  present  proceeding 
transgresses  this  limit.  The  conveyance  of  the  three 
acres  was  not  asked  for  by  the  city  nor  offered  by  the  ap- 
pellant. Whatever  its  merits  as  a  just  or  wise  settlement 
between  the  parties,  it  was  not  apparently  desired  by 
either,  and  was  certainly  no  part  of  the  issue  which  they 
brought  into  court  to  have  decided.  In  imposing  it  as  a 
condition  of  the  refusal  of  a  new  trial  therefore,  the  court 
exceeded  its  discretionary  authority. 

The  condition  was  erroneous  also  from  another  point  of 
view  as  tending  to  deprive  appellant  of  his  property  in 
violation  of  his  right  to  have  a  jury  pass  upon  its  value. 
In  this  respect  the  case  goes  further  than  LeJir  v.  Brod- 
heck,  192  Pa.  535,  where  the  jury  having  found  a  verdict 
for  defendant  contrary  to  the  instructions  of  the  judge,  as 
to  part  of  the  goods  sued  for,  the  court  directed  the  ac- 
ceptance of  an  offer  by  the  defendant  to  pay  a  sum  less 
than  plaintiff  claimed,  and  on  refusal  of  plaintiff  to  accept, 
refused  a  new  trial.  It  was  held  that  this  was  error.  In 
the  opinion  our  Brother  Dean  said:  ''The  ])laintiff 
claimed  that  the  value  of  her  goods  wrongfully  seized  and 
sold  was  $335.  And  whether  this  was  the  value  or  not, 
she  had  offered  evidence  tending  to  establish  it  as  the 
value.  As  a  suitor  under  the  law  she  had  a  right  to  the 
opinion  of  the  jury  on  the  evidence;  and  the  court  at  the 
trial  thought  so  too.  It  however  now  directs  her  arbi- 
trarily to  strike  from  her  claim  $85.00  and  as  a  penalty  for 
refusal  in  effect  says  she  shall  have  nothing."  See  also 
Bradwdl  v.  Pittsburg,  etc.,  By.  Co.,  139  Pa.  404. 

Judgment  reversed,  and  record  remitted  with  directions 
to  reinstate  the  rule  for  new  trial  and  proceed  to  dispose 
of  it  according  to  law. 


Sec.  lOJ  New  Tkials  765 


GILA  VALLEY,  GLOBE  &  NORTHERN  RAILWAY 
COMPANY  V.  HALL. 

Supreme  Court  of  the  Territory  of  Arizona.      1911. 

13  Arizona,  270. 

Campbell,  J.  Appellee  was  in  the  employ  of  appel- 
lant as  chainman.  On  April  23,  1907,  he  was  engaged  with 
another  emploj^ee,  named  Ryan,  in  measuring  distances, 
locating  mile-posts  on  appellant's  line  of  railway.  For 
that  purpose  they  used  a  three-wheeled  velocipede  fur- 
nished by  appellant.  This  velocipede  was  of  the  kind  or- 
dinarily used  in  work  of  this  character,  with  a  gasoline 
engine  for  motive  power.  It  had  two  wheels  on  the  right- 
hand  side,  over  which  was  the  engine,  and  a  seat  for  the 
use  of  the  operator,  and  a  seat  in  front  for  another  per- 
son. The  third  wheel  was  a  small  wheel  on  the  left-hand 
side,  nearly  opposite  the  front  wheel  on  the  right-hand 
side,  and  fastened  to  the  machine  by  a  bar  extending 
across  the  track.  On  the  day  mentioned,  Hall  and  Ryan 
were  upon  this  velocipede  on  plaintiff's  line  of  railway, 
Rvan  operating  the  mahcine  and  Hall  sitting  in  front. 
While  the  velocipede  was  going  at  a  speed  of  from  eight 
to  twelve  miles  an  hour,  it  suddenly  left  the  track,  going 
to  the  left,  the  side  on  which  was  situated  the  one  small 
wheel.  Hall  was  thrown  in  front  of  it  and  run  over,  sus- 
taining severe  in.iuries.  This  action  was  brought  against 
the  railroad  company  to  recover  damages  for  the  injuries 
so  received,  it  being  alleged  that  the  flange  on  the  third  6r 
small  wliool  was  worn  and  cracked,  and  that  by  reason  of 
such  condition  the  machine  left  the  track,  and  that  the 
company  was  neg]i2"ent  in  furnishing  such  velocipede.  Ap- 
pellant answered,  denying  the  negligence  alleged,  pleading 
contributory  negligence,  and  that  Hall  knew^  or  might  have 
known  the  condition  of  the  velocipede  and  assumed  the 
risk  of  the  in.iuries  resulting  from  the  alleged  defect.  The 
jury  returned  a  verdict  for  $10,000.  A  motion  for  a  new- 
trial  was  made,  and  prior  to  its  determination  Hall  volun- 
tarily remitted  $5,000  from  the  amount  of  the  verdict. 
Thereafter,  the  court  denied  the  motion  for  a  new  trial 


766  Tkiai,  Practice  [Chap.  17 

and  entered  judgment  in  favor  of  the  plaintiif  for  $5,000 
and  costs.  From  this  judgment  and  from  the  order  deny- 
ing the  motion  for  new  trial,  the  railway  company  appeals. 

********** 

The  remaining  important  question  in  the  case  is  whether 
the  court  erred  in  rendering  judgment  for  the  amount  of 
the  verdict  less  the  sum  remitted  by  the  appellee.  It  is 
insisted  by  appellant  that  the  court  should  have  granted 
a  new  trial  for  the  reason  that  it  is  beyond  the  power  of  a 
court  to  permit  a  remittitur  where  the  damages  are  un- 
liquidated and  the  verdict  excessive.  The  question  has 
heretofore  been  before  this  court  in  two  cases.  Southern 
racific  Co.  V.  Tomlinson,  4  Ariz.  126,  33  Pac.  710,  was  an 
action  to  recover  damages  for  death  by  wrongful  act,  un- 
der a  statute  permitting  the  jury  "to  give  such  damages 
as  they  may  think  proportioned  to  the  injuries  resulting 
from  said  death."  A  verdict  for  $50,000  was  returned, 
from  the  which  the  plaintiff  remitted  $31,998,  and  judg- 
ment was  entered  for  the  remainder.  The  power  of  the 
trial  court  to  permit  the  remittitur  was  questioned,  but  it 
was  held:  ''A  trial  court  has  the  power,  where  excessive 
damages  have  been  allowed  by  the  jury,  and  where  the  mo- 
tion to  set  aside  the  verdict  is  based  upon  this  ground,  to 
make  a  remission  a  condition  precedent  to  overruling  the 
motion.  The  exercise  of  this  power  rests  in  the  sound 
discretion  of  the  court.  This  doctrine  is  affirmed  in  the 
case  of  Cattle  Co.  v.  Mann,  130  U.  S.  74,  9  Sup.  Ct.  458, 
32  L.  Ed.  854;  also  in  Railroad  Co.  v.  Herbert,  116  U.  S. 
642,  6  Sup.  Ct.  590,  29  L.  Ed.  755.  Of  course,  if  it  is  ap- 
parent to  the  trial  court  that  the  verdict  was  the  result  of 
passion  of  prejudice,  a  remittitur  should  not  be  allowed, 
but  the  verdict  should  be  set  aside.  In  passing  upon  this 
question,  the  court  should  not  look  alone  to  the  amount  of 
damages  awarded,  but  to  the  whole  case,  to  determine  the 
existence  of  passion  or  prejudice,  and  to  determine  how 
far  such  passion  or  prejudice  may  have  operated  in  in- 
fluencing the  finding  of  any  verdict  against  the  defendant. 
AVlicn  the  circumstances,  as  they  may  appear  to  the  trial 
court,  indicate  that  the  jury  deliberately  disregarded  the 
instructions  of  the  court,  or  the  facts  of  the  case,  a  re- 
mittitur should  not  be  allowed,  but  a  new  trial  should  be 
granted.      If  they  do  not  so  indicate,  and  the  plaintiff  vol 


Sec.  10]  New  Tkials  767 

imtarily  remits  so  much  of  the  damages  as  may  appear  to 
he  excessive,  the  court,  in  its  discretion,  may  allow  the  re- 
mission and  enter  judgment  accordingly."  In  Southern 
Pacific  Co.  v.  Fitchett,  9  Ariz.  128,  80  Pac.  359,  the  verdict 
was  for  $1,000  for  ''injuries  to  feelings,"  from  which  the 
plaintiff,  upon  the  suggestion  of  the  trial  court,  remitted 
$600.  This  court  held  that  it  was  apparent  that  the  jury 
was  influenced  by  passion  or  prejudice,  and  that  therefore 
a  new  trial  should  have  been  granted.  We  further  sought 
to  distinguish  the  facts  in  that  case  from  the  Tomlinson 
case,  suggesting  that  in  the  latter  the  damages  were  sus- 
ceptible of  accurate  computation  from  the  evidence.  We 
are  not  now  prepared  to  adhere  to  the  views  so  expressed. 
Both  are  cases  of  unliquidated  damages.  In  the  one  case 
not  less  than  the  other,  the  jury's  verdict  represents  the 
damages  "proportioned  to  the  injuries  resulting"  in  the 
opinion  of  the  jury,  based  upon  evidence  that  affords  no 
basis  for  exact  computation.  If  there  is  a  difference,  it 
is  one  of  degree  rather  than  one  of  kind.  There  is  au- 
thority for  the  position  that  in  no  case  of  unliquidated 
^damages  should  the  court  permit  a  remission  where  the 
verdict  is  excessive,  without  the  consent  of  the  defendant, 
but  as  we  now  view  it,  the  great  weight  of  authority  sup- 
ports the  practice.  Northern  Pacific  R.  R.  Co.  v.  Herbert, 
116  U.  S.  642,  6  Sup.  Ct.  590,  29  L.  Ed.  755;  Arkansas  Cat- 
tle Co.  V.  Mann,  130  U.  S.  69,  9  Sup.  Ct.  458,  32  L.  Ed.  854; 
Kennon  v.  Gilmer,  131  U.  S.  22,  9  Sup.  Ct.  696,  33  L.  Ed. 
110;  29  Cyc.  1022,  1023,  and  cases  cited. 

It  is  argued  that  to  permit  a  remittitur,  or  to  require  it 
as  a  condiiton  of  refusing  a  new  trial,  is  to  substitute  the 
court's  judgment  for  that  of  a  jury,  to  the  latter  of  which 
the  defendant  is  entitled.  But  it  is  to  the  jury's  judg- 
ment that  defendants  object  when  they  appeal  to  the  court 
for  new  trials  on  the  ground  of  excessive  verdicts.  The 
trial  court  has  undoubted  power  to  determine  whether  the 
verdicts  is  or  is  not  excessive,  and  in  considering  the  ques- 
tion usually  determines  in  its  o-wn  mind  the  maximum 
amount  for  which  a  verdict  could  with  propriety  be  per- 
mitted to  stand.  AVliere  there  has  been  no  error  of  law 
committed  which  would  require  a  re-trial,  and  it  ap- 
pears that  the  excessive  verdict  has  resulted  from  too  lib- 
eral views  as  to  the  damages  sustained,  rather  than  from 


768  Trial  Practice  [Chap.  17 

prejudice  or  passion,  to  permit  a  remission  of  tlie  excess, 
instead  of  putting  the  parties  to  the  expense  of  a  new  trial, 
promotes  justice  and  puts  an  end  to  the  litigation.  Of 
course,  il  it  appears  that  the  verdict  is  tainted  by  preju- 
dice or  passion,  and  does  not  represent  the  dispassionate 
judgment  of  the  jury  upon  the  question  of  the  right  of  the 
plaintiff  to  recover,  a  new  trial  should  be  granted.  But 
we  think  that  the  trial  court  is  in  a  better  position  to  de- 
termine whether  the  verdict  is  so  tainted  than  is  this  court, 
and  that  unless  it  clearly  appears  from  the  record  that  the 
excessive  verdict  resulted  from  prejudice  or  passion, 
rather  than  from  that  liberality  which  jurors  sometimes 
exercise  in  cases  which  appeal  to  men's  sympathies,  we 
should  accept  the  trial  court's  determination.  The  trial 
court  in  this  case  has  determined  that  the  jury  was  not  in- 
fluenced bv  passion  or  prejudice,  and  we  see  no  reason  for 
not  accepting  its  conclusion. 

Other  rulings  of  the  court  are  assigned  as  error  and  have 
received  our  consideration,  but  thev  are  not  of  sufficient 
importance  to  warrant  discussion  here.  We  find  no  re- 
versible error  in  the  record,  and  affirm  the  judgment  of 
the  district  court. 

Kent,  C.  J.,  and  Lewis  and  Doe,  JJ.,  concur. 


Section  11.     Notice  of  Motion. 

HANSEN  V.  FISH. 

Supreme  Court  of  Wisconsin.    1871, 

27  Wisconsin,  535. 

Lyon,  J.  *  *  * 

The  action  was  tried  at  the  December  term,  1869,  of  that 
court,  and  the  plaintiff  had  a  verdict.  The  verdict  was  re- 
turned on  the  15th  day  of  that  montli,  and  immediately  the 
attorney  for  the  defendants,  in  the  absence  of  the  attorney 
for  the  plaintiff,  made  a  motion  orally  for  a  new  trial  upon 
the  minutes  of  the  judge.  This  motion  was  not  entered 
in  the  minutes  of  the  clerk  at  the  time  it  was  made.     On 


Sec.  11]  New  Teials  760 

the  return  of  the  attorney  for  the  plaintiff  into  court  soon 
after,  the  judge  informed  him  that  such  motion  had  been 
made.  However,  the  attorney  for  the  plaintiff,  under- 
standing that  the  motion  was  not  to  be  entertained,  remit- 
ted a  part  of  the  verdict,  and  procured  the  judge  to  sign  an 
order  for  judgment  for  the  residue  thereof.  The  judge 
did  not  understand  that  such  motion  was  not  to  be  pressed 
or  entertained,  and  signed  the  order  for  judgment  inadver- 
tently. The  counsel  for  plaintiff  proceeded  to  give  notice  of 
the  adjustment  of  tlie  costs,  had  the  same  adjusted,  and,  on 
the  22d  day  of  December,  perfected  the  judgment  and  left 
the  court.  On  the  next  day,  December  23d,  the  court,  in  the 
due  course  of  business,  heard  the  motion  for  a  new  trial 
made  on  the  15th,  no  one  appearing  thereon  for  the  plain- 
tiff, and  after  due  consideration  and  on  the  same  day 
granted  the  motion. 

At  the  next  term  of  the  court  the  plaintiff  moved  the 
court,  on  due  notice,  to  set  aside  and  vacate  the  order  of 
December  23d,  granting  a  new  trial;  and  the  court  denied 
the  motion,  and  an  order  was  duly  entered  to  that  effect. 
From  this  last  mentioned  order  the  plaintiff  appeals. 

The  principal  question  presented  by  this  appeal  is, 
whether  the  opposite  party  is  entitled  to  formal  notice  of 
a  motion  made  upon  the  minutes  of  the  judge  to  set  aside  a 
verdict,  or  a  verdict  and  judgment,  if  judgment  has  been 
entered,  and  for  a  new  trial. 

Such  motions  must  be  made  at  the  same  term  at  which 
the  cause  is  tried.  R.  S.  ch.  132,  sec.  16.  "A  trial  is  the 
judicial  examination  of  the  issues  between  the  parties, 
whether  they  be  issues  of  law  or  of  fact."  Sec.  5  of  the 
same  chap.  This  judicial  examination  of  the  issues  is  not 
by  the  jury  alone.  The  judge  has  something  to  do  with  it. 
Hence  such  examination  is  not  complete  when  the  jury  have 
returned  a  verdict. 

It  is  then  for  the  judge  to  say  whether  they  have  decided 
correctly,  and  if  he  finds  upon  *'an  examination  of  the  is- 
sues" that  they  have  not,  or  if  he  finds  that  his  rulings  dur- 
ing the  trial  have  been  wrong,  on  a  motion  for  that  purpose 
founded  on  his  minutes,  and  made  at  the  same  term,  he 
will  set  aside  such  erroneous  verdict  and  grant  a  new  trial. 

It  seems  quite  clear  to  my  mind,  that  such  motion  and 
the  decision  thereof  is  a  part  of  the  trial,  and  is  covered  by 

T.  P.— 49  ' 


770  Trial  Practice  [Chap.  17 

the  notice  of  trial.     This  is  so  of  all  the  usual  motions 
which  may  be  made  in  progress  of  a  trial  intermediate  the 
verdict  and  the  judgment,  such  as  motions  for  stay  of  pro- 
ceedings after  verdict  and  motions  for  judgment,  which 
may  involve  to  some  extent  an  examination  of  the  issues. 
I  do  not  understand  that  there  is  any  law  or  rule  of  court 
which  requires  notice  to  be  given  of  such  motions  when 
they  are  made  at  the  same  term  at  which  the  cause  is  tried. 
And  I  think  a  motion  for  a  new  trial  on  the  minutes  of  the 
judge  is  of  the  same  character.     In  practice  I  never  knew 
a  formal  written  notice  of  such  motion  to  be  given.     They 
are  usually  made  orally,  decided  by  the  court,  and  the  mo- 
tion and  order  granting  or  denying  it  entered  in  the  min- 
utes by  the  clerk.     In  the  ninth  circuit  it  is  not  the  prac- 
tice to  hear  argument  upon  such  motions,  except  in  special 
cases  the  judge  indicates  a  desire  that  they  be  argued.    So 
far  as  I  know,  this  practice  prevails  to  a  greater  or  less  ex- 
tent throughout  the  state,  and  I  think  has  its  origin  in  the 
generally  received  opinion  of  the  courts  and  the  bar,  that 
these  motions  and  the  decision  of  them  are  parts  of  the 
trial,  and  do  not  require  any  formal  notice  to  the  adverse 
party,  but  are  covered  by  the  notice  of  trial.  *  *  * 

We  find  no  error  in  the  proceedings  of  the  circuit  court, 
and  are  therefore  of  the  opinion  that  the  order  appealed 
from  should  be  affirmed. 

By  the  Court. — Order  affirmed. 


BOAEMAN  V.  HINCKLEY. 

Supreme  Court  of  Washington.    1897. 
17  Washington,  126. 

The  opinion  of  the  court  was  delivered  by 

Reavis,  J.— Action  by  plaintiff,  respondent  here,  against 
defendant  for  damages  for  breach  of  contract.  Verdict  of 
jury  for  defendant.  Within  two  days  after  rendition  of 
the  verdict  the  plaintiff  filed  and  served  on  the  defendant 
a  motion  for  a  new  trial,  specifying  the  grounds  relied  up- 
on in  the  motion.     The  court,  upon  hearing   the   motion, 


Sec.  11]  New  Trials  771 

granted  a  new  trial,  from  which  order  the  defendant  ap- 
peals. 

The  first  contention  of  appellant  is  that  no  notice  of  in- 
tention to  move  for  a  new  trial  was  filed  within  two  days 
after  rendition  of  the  verdict,  as  required  by  the  statute 
(Code,  Proc,  <§.  404),  but  the  motion  itself  specifying  the 
grounds  assigned  for  a  new  trial  was  filed  and  served  on 
the  defendant  within  the  time  required  by  statute.  The 
cases  cited  by  appellant  from  California  and  Montana  are 
inapplicable.  In  those  cases,  either  no  notice  or  motion 
was  filed  within  the  time  required  by  statute,  or  else  the 
specifications  of  the  reasons  relied  on  for  asking  a  new 
trial  were  not  stated.  The  courts  usually  construe  the 
form  of  a  notice  fairly.  The  motion  for  a  new  trial  filed 
by  plaintiff  in  this  case  fully  advised  the  defendant  of 
plaintiff's  intention  to  move  for  a  new  trial,  and  specified 
the  grounds.  The  motion  itself  here  fulfills  the  function 
of  the  notice  required  by  the  statute.  The  power  to  grant 
a  new  trial  by  the  court  hearing  the  cause  is  one  of  discre- 
tion, and  the  statute  making  the  order  appealable  has  not 
changed  the  established  principles  controlling  the  granting 
or  refusal  of  a  new  trial.  Only  abuse  of  such  discretion 
will  be  reviewed.  We  perceive  no  abuse  of  its  discretion 
by  the  superior  court  in  the  order  made,  and  its  order  i» 
affirmed. 

Scott,  C.  J.,  and  Anders,  Dunbar  and  Gordon,  JJ.,  con- 
cur. 


ANDEKSON  V.  FIRST  NATIONAL  BANK  OF  GRAND 

FORKS. 

Supreme  Court  of  North  Dakota.    1895. 

5  North  Dakota,  80. 

Corliss,  J.  * 


*  * 
*     # 


It  was  urged  on  the  argument  that  the  order  denying 
the  motion  for  a  new  trial  should  be  affirmed,  for  the  rea- 
son that  it  appears  that  the  notice  of  intention  to  move  for 


772  Teial  Practice  [Chap.  17 

a  new  trial  was  not  served  within  the  statutory  time.  But 
an  examination  of  the  record  satisfies  us  that  the  time  in 
which  to  serve  such  motion  was  extended  by  the  coart,  and 
that  the  notice  was  served  within  the  time  as  so  extended. 
Nor  do  we  think  there  is  any  force  in  the  contention  that 
the  paper  so  served  was  not  a  notice  of  intention.  It  is 
true  that  it  was  in  bad  form,  in  that  it  embodied  a  notice, 
not  only  that  plaintiff  intended  to  move  for  a  new  trial  on 
the  grounds  therein  stated  on  a  statement  of  the  case,  but 
that  he  would  bring  his  motion  for  such  new  trial  on  to  a 
hearing  at  a  specified  time  and  place.  The  notice  of  in- 
tention and  the  notice  of  motion  are  two  distinct  and  ut- 
terly different  notices,  and  it  is  not  good  practice  to  em- 
brace both  elements  in  one  paper.  Sections  5090,  5092, 
Comp.  Laws.  The  notice  of  intention  should  not  state 
when  and  where  the  motion  for  a  new  trial  will  be  heard. 
As  a  general  rule,  the  person  who  desires  to  make  such  mo- 
tion is  not  in  position  to  notice  his  motion  for  a  hearing  at 
the  time  he  serves  his  notice  of  intention,  for  it  often  hap- 
pens that  at  that  time  the  bill  or  statement  has  not  been 
settled. 

The  order  is  reversed,  and  a  new  trial  is  granted.     All 
concur. 


KRAKOWER  V.  DAVIS. 

Supreme  Court  of  Neiv  York,  Appellate  Term.    1897. 
20  Miscellaneous,  350. 

BiscHOFF,  J.  The  plaintiff's  claim  was  for  commissions 
earned  in  a  transaction  involving  the  sale  of  certain  real 
estate,  owned  by  the  defendants  as  tenants  in  common,  and 
tlie  trial  resulted  in  a  verdict  in  his  favor  ''for  one-eighth 
of  the  commission  claimed." 

This  verdict  was  set  aside,  at  the  time  of  its  rendition, 
and  a  now  trial  was  ordered,  from  wliich  order  the  defend- 
ant Levy,  the  sole  litigating  defendant,  appeals. 

The  first  objection  which  the  appellant  raises  to  the  va- 


Sec.  11]  New  Trials  773 

lidity  of  the  order  is  based  upon  the  fact  that  no  notice  of 
the  motion  was  given,  the  order  having  been  made  directly 
upon  the  rendition  of  the  verdict. 

The  statute  provides  (Laws  1896,  chap.  748):  ''Notice 
of  such  motion  of  not  less  than  five  days  nor  more  than 
eight  days  shall  be  given  to  the  adverse  party  or  his  attor- 
ney, within  five  days  after  the  rendition  of  the  verdict,  or 
the  entry  of  the  judgment,"  and  it  is  contended  that  the 
justice  was  without  power  to  make  the  order  in  question  be- 
cause such  notice  had  not  been  given. 

This  statutory  requirement  of  notice  was  for  the  adverse 
party's  benefit  only,  and  so  could  be  waived  by  him  (Re 
Cooper,  93  N.  Y.  507),  and  his  consent  to  the  court's  enter- 
taining the  motion  at  the  time  when  it  was  made,  in  his 
presence,  "^as  to  be  inferred  from  his  failure  to  object  upon 
the  ground  that  insufficient  notice  had  been  given  (Mayor, 
etc.  V.  Lyons,  24  How.  Pr.  280),  if,  indeed,  the  statute  is  to 
be  construed  as  calling  for  such  notice  where  the  motion 

is  made  upon  the  return  of  the  verdict. 

********** 

Order  affirmed,  with  costs. 

Daly,  P.  J.,  and  McAdam,  J.,  concur. 

Order  affirmed,  with  costs. 


SIMPSON  V.  BUDD. 

Supreme  Court  of  California.    1891. 
27  Pacific,  758. 

De  Havex,  J.  *  *  * 

*  *  *  The  only  question  for  decision  is  whether  the 
statutory,''  time  for  giving  notice  of  intention  to  move  for  a 
new  trial  and  the  preparation  of  bills  of  exception  can  be 
extended  by  a  stipulation  of  counsel  not  filed  within  the 
statutory  time,  and  of  this  we  entertain  no  doubt.  An  at- 
torney has  authority  to  bind  his  client  in  any  of  the  steps 
of  an  action  or  proceeding  by  his  agreement  in  writing,  filed 
with  the  clerk,  or  entered  upon  the  minutes  of  the  court. 
Section  283,  Code  Civil  Proc.     The  service  and  filing  of 


774  Trial  Practice  [Chap.  17 

notices  of  motion  for  a  new  trial  and  proposed  bills  of  ex- 
ception are  steps  in  an  action  within  the  meaning  of  this 
section,  and  the  stipulation  is  filed  in  time  if  it  is  on  file, 
with  the  consent  of  the  adverse  attorney,  when  the  court 
is  called  upon  to  act  upon  the  matter  affected  by  the  stipu- 
lation. Section  1054  of  the  Code  of  Civil  Procedure  does 
not  limit  the  authority  of  attorneys,  as  given  by  section  283 
of  the  same  Code,  nor  prescribe  the  exclusive  mode  by 
which  the  time  for  giving  notices  or  the  service  of  proposed 
statements  or  bills  of  exception  may  be  extended,  but  it 
only  imposes  a  limitation  upon  the  power  of  the  court  to 
extend  such  time  without  the  consent  of  the  adverse  party. 
It  is  undoubtedly  true,  as  has  often  been  decided  by  this 
court,  that  the  right  to  move  for  a  new  trial  is  statutory, 
and,  unless  the  prescribed  steps  are  taken  within  the  time 
allowed,  the  right  does  not  exist  as  against  a  party  who 
stands  upon  the  statute  and  insists  upon  strict  compliance 
with  every  provision  of  the  law  relating  thereto,  and  in- 
tended for  his  benefit ;  but  it  has  never  been  held  that  such 
provisions  may  not  be  waived  by  the  party  otherwise  en- 
titled to  claim  their  benefit.  On  the  contrary,  it  has  been 
assumed  in  many  cases,  if  not  directly  decided,  that  the 
time  for  giving  notice  of  motion  for  a  new  trial,  as  well  as 
every  other  step  to  be  taken  in  relation  thereto,  may  be 
waived  or  extended  by  consent.  Hohhs  v.  Duff,  43  Cal. 
485;  Brichman  v.  Ross,  67  Cal.  602,  8  Pac.  Rep.  316;  Pa- 
trick V.  Morse,  64  Cal.  462,  2  Pac.  Rep.  49;  Gray  v.  Nunan, 
63  Cal.  220;  Schieffertj  v.  Tapia,  68  Cal.  184,  8  Pac.  Rep. 
878;  Curtis  v.  Superior  Court,  70  Cal.  390,  11  Pac.  Rep. 
652.  We  are  of  the  opinion  that  the  parties  may,  within 
the  time  allowed  by  law  to  give  notice  of  intention  to  move 
for  a  new  trial,  stipulate  that  the  time  for  giving  such  no- 
tice may  be  extended,  and  that  such  stipulation  has  effect 
without  any  order  of  the  court  ratifying  the  same.  The 
question  in  such  cases  is  one  which  most  immediately  con- 
cerns the  parties  to  the  action,  and  attorneys  may  be  safely 
intrusted  to  look  after  the  rights  of  their  respective  clients 
in  such  matters.     *     *     * 

We  concur:     Beatty,  C.  J.;  Sharpstein,  J.;  Harrison, 
J. ;  Patterson,  J. ;  Garoutte,  J. 


Sec.  12]  New  Teials  775 

Section  12.     Time  of  Motion. 

CITY  OF  ST.  JOSEPH  V.  KOBISON. 

Supreme  Court  of  Missouri.    1894. 

125  Missouri,  1. 

Burgess,  J. 

This  is  ejectment  for  the  recovery  of  the  possession  of  a 
small  parcel  of  ground  which  plaintiff  claims  as  a  part  of 
a  street,  and  to  which  defendant  claims  to  have  acquired 
title  by  limitation.  There  was  a  trial  to  a  jury  and  judg- 
ment rendered  for  defendant,  and  plaintiff  appeals. 

The  verdict  was  rendered  on  the  sixth  day  of  November, 
1891,  and  the  motion  for  a  new  trial  was  filed  on  the  six- 
teenth day  of  November  next  thereafter.  The  motion  was 
filed  out  of  time,  and  the  bill  of  exceptions  can  not  be  con- 
sidered by  this  court.  It  should  have  been  filed  within  four 
days  after  the  verdict  (R.  S.  1889,  sec.  2243),  and  could  not 
be  filed  thereafter.  It  was  so  held  in  Maloney  v.  Railroad, 
122  Mo.  106.  The  judgment  is  affirmed.  All  of  this  divi- 
sion concur.^ 

1  This  was  the  common  law  rule.  Tidd  says:  "The  motion  for  a  new  trial 
must  be  made,  in  the  King's  Bench,  within  four  days  exclusive  after  the  en- 
try of  a  rule  for  judcrment  (Doug.  171)  ;  and  it  cannot  be  made  after  the  four 
days,  though  by  consent  of  the  parties  (1  Glut.  382,  3)  "  2  Tidd 's  Practice, 
*912.  In  the  United  States  the  time  is  usually  fixed  by  statute  or  rule  of 
court.  When  not  so  fixed  it  is  a  matter  within  the  discretion  of  the  court. 
Thus,  it  was  said  in  Conklin  v.  Hinds  (1871)  16  Minn.  457:  "At  common 
law  and  in  the  chancery,  the  time  for  making  it  [the  motion  for  a  new  trial] 
was  matter  of  practice  regulated  by  rule  of  court.  It  remains  so  unless 
the  statute  has  regulated  the  practice.  And  since  it  has  not  done  so  in  this 
instance,  and  the  district  court  has  adopted  no  general  rule  in  this  respect, 
it  must  be  for  the  judge,  before  whom  such  motion  is  made,  to  decide  in  each 
instance,  whether  or  not  it  was  made  too  late,  a  decision  which  we  should  not 
review,  unless  an  abuse  of  discretion  appeared." 


776  Teial  Practice  [Chap.  17 

BAILEY  V.  DRAKE. 

Supreme  Court  of  Washington.    1895. 

12  Washington,  99. 

HOYT,  C.  J. 

This  is  an  appeal  from  an  order  granting  a  new  trial. 
The  verdict  which  was  set  aside  by  said  order  was  rendered 
on  the  1st  day  of  December.  The  motion  for  a  new  trial 
was  not  filed  until  the  4th  day  of  December.  On  account 
of  the  delay  in  its  filing  the  appellant  objected  to  its  being 
h«ard.  Upon  such  objection  being  made  the  court,  on  mo- 
tion of  the  respondent,  made  an  order  extending  the  time  in 
which  the  motion  for  a  new  trial  might  be  filed  so  as  to  in- 
clude the  said  4th  day  of  December,  and,  having  done  so, 
proceeded  to  the  consideration  of  the  motion  and,  for  rea- 
sons satisfactory  to  it,  set  aside  the  verdict  and  ordered  a 
new  trial. 

Appellant  relies  upon  two  grounds  to  reverse  the  order: 
(1)     That  it  was  beyond  the  power  of  the  court  to  extend 
the  time  in  whicli  to  file  the  motion  for  a  new  trial  aftef^ 
the  expiration  of  thejime  fixed  by  the  statute.  *  *  * 

The  appellant  cites  numerous  cases  to  support  his  first 
contention,  but  none  of  them  have  any  force  under  our 
statute,  which,  unlike  those  of  the  states  in  which  the  deci- 
sions relied  upon  were  rendered,  specially  confers  the  pow- 
er upon  the  court  to  enlarge  the  time  for  the  making  of  any 
motion  or  giving  notice  thereof,  after  the  expiration  of  the 
statutory  time  as  well  as  before.  The  language  of  sec.  24, 
of  ch.  127  of  the  Laws  of  1893  (p.  414),  upon  this  subject 
is  as  follows: 

a*  *  *  ^jj^  |-j^g  court  may  enlarge  or  extend  the  time, 
for  good  cause  shown,  within  which  by  statute  any  act  is  to 
be  done,  proceeding  had  or  taken,  notice  of  paper  filed  or 
served,  or  may,  on  such  terms  as  are  just,  permit  the  same 
to  be  done  or  supplied  after  the  time  therefor  has  expired. 


*      *      *      *      *  M 


And  there  fan  l)o  no  ('Sf';\]v^  from  the  conclusion  that  the 
legisTaTiiic  intciidcl  ])y  its  ciiactincnt  to  confer  authority 
upon  the  coui'ls  tu  extend  the  time  in  which  acts  of  the 


Sec.  12] 


New  Trials 


777 


Kind  under  consideration  conld  be  done  after  the  expiration 

of  the  statutory  time,  as  well  as  before. 

********** 

Affirmed. 
Scott,  Dunbae,  Anders  and  Gordon,  JJ.,  concur. 


HAYES  V.  IONIA  CIRCUIT  JUDGE.    ^  '  ^^ 


M#^ 


Supreme  Court  of  Michigan.    1900,  i  i  , 

125  Michigan,  277. 

Mandamus  by  Mary  A.  Hayes  to  compel  Frank  D.  M. 
Davis,  Circuit  Judge  of  Ionia  county,  to  strike  a  motion 
for  a  new  trial  from  the  files,  and  to  vacate  an  order  extend- 
ing the  time  in  which  to  settle  a  bill  of  exceptions  or  move 
for  a  new  trial.  Submitted  October  30,  1900.  Writ  denied 
November  13,  1900. 

Moore,  J. 

The  provisions  of  law  in  relation  to  new  trials  in  civil 

^"^uses  are  to  be  found  in  1  Comp.  Laws  1897,  sec.  205,  and 

Cir.  Ct.  Rule  No.  21.^     It  will  be  observed  that  there  is  no 

such  limitation  of  time  as  there  is  in  the  rule  relatmg  to  the 

settlement  of  bills  Of  exceptions.     The  provisions  do  not 

interfere  with  the  common-law    discretion    of   the    court. 

They  only  fix  a  time  beyond  which  no  one  could  move  for  a 
new  f Hal  as  a  matter  of  right.  In  People  v.  Wayne  Circuit 
Judge,  20  Mich.  220,  it  was  said : 

'*It  is  not  clear  that  motions  for  a  new  trial  based  on 
newly-discovered  evidence  would  come  within  the  rule  fix- 
ing a  time,  for  the  facts  may  not  be  ascertained  until  after- 
wards. It  is  not  desirable  to  compel  parties  to  resort  to 
courts  of  equity  to  obtain  new  trials,  where  it  can  be  avoid- 
ed ;  and  in  such  cases  the  courts  of  law  should  act  on  equit- 

1  Circuit  Court  "Rule  21  reads  as  follows:  "Motions  for  a  new  trial  and 
motions  in  arrest  of  judgment,  with  the  reasons  on  which  they  are  founded, 
shall  be  filed  and  a  codj  thereof  served  on  the  opposite  party  within  five  days 
after  the  rendition  of  "a  verdict,  in  the  case  of  a  trial  by  jury,  and  within 
a  like  time  after  the  decision  of  the  court,  when  the  cause  has  been  tried  by 
the  court,  or  witlin  f»uch  further  time  as  shall  be  allowed  therefor  by  the 
court  or  judge." 


778  Teial  Peactice  [Chap.  IV 

able  principles,  and  do,  if  they  can,  what  justice  requires." 
See,  also,  Van  Rensela&r  v.  Whiting,  12  Mich.  449 ;  Cam- 
pau  V.  Coates,  17  Mich.  237. 

In  Manufacturers'  Mut.  tire  Ins.  Co.  v.  Gratiot  Circuit 
Judge,  79  Mich.  241  (44  N.  W.  604),  an  ex  parte  order  ex- 
tending the  time  in  which  to  move  for  a  new  trial  was  en- 
tered.    This  court  declined  to  interfere  with  the  action  of 
the  court.     In  the  case  of  Reynolds  v.  Sweet,  104  Mich.  252 
(62  N.  W.  356),  a  judgment  was  entered  in  the  circuit  court 
March  21,  1894.     The  case  was  brought  to  this  court,  and 
decided  February  26,   1895.     The  judgment  of  the  court 
below  was  affirmed,  and  a  remittitur  was  sent  to  the  clerk 
of  the  circuit  court.     The  judgment  was  paid  in  March. 
December  20th  following,  a  year  and  nine  months  after  the 
original  judgment  was  entered,  a  motion  was  made  for  a 
new  trial,  and  the  new  trial  was  granted.     Upon  an  appli- 
cation for  a  mandamus,  this  court  declined  to  interfere. 
Reynolds  v.  Newaygo  Circuit  Judge,  109  Mich.  403   (67 
N.  W.  529).     In  Fort  Wayne,  etc.,  R.  Co.  v.  Wayne  Circuit 
Judge,  110  Mich.  173  (68  N.  W.  115),  the  circuit  judge  upon 
his  own  motion  granted  a  new  trial,  and  it  was  held  he  had 
the  right  to  do  so.     The  counsel  for  the  relator  cite  the 
case  of  Frazer  v.  Judge  of  Recorder's  Court,  112  Mich.  469 
(70  N.  W.  1042).     That  case  was  a  criminal  case.     The 
statute  authorizing  a  new  trial  in  criminal  cases  limited  the 
time  in  which  the  application  must  be  made.     The  case  is 
not  applicable  here. 

It  is  urged  that,  if  the  circuit  judge  may  grant  a  new 
trial  after  the  time  for  settling  a  bill  of  exceptions  has  ex- 
pired, unreasonable  delays  will  be  caused,  abuses  will 
arise,  and  parties  will  obtain  by  indirection  what  they  can- 
not obtain  directly.  We  are  not  at  liberty  to  assume  that 
circuit  judges  will  not  do  their  full  duty,  or  will  grant  a 
new  trial  except  where  it  ought  to  be  granted  in  furtherance 
of  justice.  Should  such  a  case  arise,  a  proper  disposition 
can  be  made  of  it. 

The  application  for  the  writ  is  denied. 
The  other  Justices  concurred. 


Sec.  12]  New  Trials  779 

ROGGENCAMP  V.  DOBBS.  ^  '  ^    H^^  V^^ 

Supreme  Court  of  Nebraska.     1884.     ^.  "^"WU  J 
15  Nebraska,  620. 

Maxwell,  J. 

This  is  an  action  of  replevin  brouo^ht  by  the  plaintiff 
:i gainst  the  defendant  to  recover  certain  hogs  belonging  to 
the  plaintiff,  which  the  defendant  as  pound  master  of  the 
village  of  Bennett  had  taken  up.  On  the  trial  of  the  cause, 
the  jury  found  for  the  defendant,  and  that  he  had  a  special 
interest  in  the  hogs  in  question  for  $10.50.  The  verdict  was 
rendered  on  the  seventh  of  June,  1882,  and  judgment  ren- 
dered thereon  on  the  twelfth  of  that  month.  On  the  eight- 
eenth, or  six  days  after  judgment  was  rendered,  the  plain-''^ 
tiff  asked  leave  to  file  a  motion  for  a  npw  trial      Thm  ap- 

jolication  was  accompanied  by  affidavits  setting  forth  neg-         

lect  of  the  plaintiff's  attorney  to  file  the  motion,  and  that 
the  plaintiff  placed  reliance  upon  liim.  etc.  A  motion  for 
"a  new  trial  was  also  tendered.  The  application  was  over- 
ruled, and  there  being  no  motion  for  a  new  trial  a  motion  is 
now  made  to  quash  the  bill  of  exceptions. 

Unless  equitable  grounds  exist  for  granting  a  new  trial, 
as  where  a  parly' is  pfeveiiTed  from  making  his  defense  by 
circumstances  beyond  his  control,  in  which  case  equity  may 
m  a  proper  case  grant  relief,  a  motion  for  a  new  trial  must 
be  filed  within  the  time  fixed  bv  law.  TInyji  r.  Quoru^  4 
Neb.  108;  Leiby  v.  Heirs  of  Ludlow,  4  Ohio,  493;  Vanner- 
son  V.  Pendleton,  8  S.  &  M.  452;  Peebles  v.  Ralls,  1  Little, 
24.  Unless  equitable  grounds  exist,  such  as  will  warrant 
a  court  of  equity  in  granting  relief,  the  motion  for  a  new 
trial  must  be  made  at  the  term  the  verdict  or  decision  is 
rendered,  and,  except  for  the  cause  of  newly  discovered 
evidence,  shall  be  within  three  days  after  the  verdict  or 
decision  is  rendered,  unless  unavoidably  prevented.  Code, 
sec.  316.  The  words  ^'unavoidably  prevented''  evidently 
refer  to  circumstances  beyond  the  control  of  the  party  de^ 
siring  to  file  the  motion.  The  law  requires  diligence  on" 
The  part  of  clients  and  attorneys,  and  the  Digj'e_neglect_of_ 


pjfhpr  will  not  entitle  a  party  to  relief  on  that  ground.     It 


780  Trial  Practice  [Chap.  1 

might  be  different  in  case  of  the  deliberate  betrayal  of  a 
^lient  by  an  attorney.  But  such  case  probably  will  not 
occur,  and  is  not  shown  in  this.  There  being  no  sufficient 
cause  shown  for  filing  the  motion  for  a  new  trial,  there  was 
no  error  in  denying  the  same.  As  none  of  the  errors  as- 
signed in  the  petition  in  error  can  be  considered,  the  judg- 
ment of  the  court  below  must  be  affirmed. 

Judgment  accordingly. 
The  other  judges  cOHCur. 


HELLMAN  V.  ABLER  &  SONS  CLOTHING 
COMPANY. 

Supreme  Court  of  Nebraska.      1900. 

60  Nebraska,  580, 

SULLXVAN,  J. 

This  proceeding  in  error  has  for  its  object  the  reversal 
of  a  judgment  denying  Maria  liellman's  application  for  a 
new  trial  based  upon  an  alleged  discovery  of  material  evi- 
dence after  the  adjournment  of  the  term  at  which  the  case 
of  David  Adler  S  Sons  Clothing  Co.  v.  Maria  Hellman  was 
decided.  The  final  decree  in  the  case  mentioned  was  ren- 
dered in  February,  1895.  It  was  adverse  to  the  defendant, 
and  she  appealed  to  this  court,  where  the  decision  of  the 
district  court  was  affirmed  June  9,  1898.  It  appears  from 
the  record  that  the  petition  for  a  new  trial  was  dismissed 
because  it  was  not  filed  within  the  time  limited  by  section 
318  of  the  Code  of  Civil  Procedure.  It  was  filed  October 
27,  1898;  more  than  three  years  after  the  final  judgment 
was  rendered  in  the  district  court,  but  within  one  year  after 
the  judgment  of  affirmance  was  pronounced.  Counsel  for 
the  plaintiff  in  error  contend  that  their  application  was  sea- 
sonably made,  because  the  final  judgment  contemplated  by 
the  limitation  law  is  the  ultimate  decision  rendered  in  the 
case,  whether  such  decision  be  given  by  the  trial  court  or 
by  this  court.      We  think  counsel  are  wrong. 

The  policy  of  the  legislature  with  respect  to  the  re-ex- 
amination of  the  issues  of  fact  once  tried  and  determined 


Sec.  12]  New  Trials  781 

is  clearly  indicated  in  article  6  of  the  Civil  Code.  A  party 
claiming  a  new  trial  must  show  diligence;  he  must  move 
promptly.  Any  needless  delay,  any  inertness,  on  his  part, 
which  hinders  the  court  in  bringing  the  litigation  to  a 
speedy  conclusion  results  in  a  forfeiture  of  the  statutory 
right.  Section  316  is  as  follows:  "The  application  for  a 
new  trial  must  be  made  at  the  term  the  verdict,  report  or 
decision  is  rendered,  and,  except  for  the  cause  of  newly  dis- 
covered evidence  material  for  the  party  applying,  which 
he  could  not  with  reasonable  diligence  have  discovered  and 
produced  at  the  trial,  shall  be  within  three  days  after  the 
verdict  or  decision  was  rendered,  unless  unavoidably  pre- 
vented." Section  318  provides:  ''T\niere  the  grounds  for 
a  new  trial  could  not,  with  reasonable  diligence,  have  been 
discovered  before,  but  are  discovered  after  tlie  term 
at  which  the  verdict,  report  of  referee,  or  decision 
was  rendered  or  made,  the  application  may  be 
made  by  petition  filed  as  in  other  cases  |  *  *  * 
but  no  such  petition  shall  be  tiled  more  than  one  year  after 
the  tinal  Judgment  was  rendered."  It  is  quite  clear  from 
the  sections  quoted  that,  if  the  new  evidence  is  discovered 
during  the  term  at  which  the  cause  was  decided,  although 
after  the  decision  was  rendered,  the  application  for  a  new 
trial  must  be  made  at  that  term.  Under  these  circum- 
stances the  law  exacts  of  the  unsuccessful  suitor  a  high  de- 
gree of  diligence  as  the  price  of  a  new  trial.  Why  should 
it  be  less  exacting  after  the  adjournment  of  the  term  at 
which  the  cause  was  decided  ?  If  a  defeated  litigant  elects 
to  abide  by  the  .judgment  of  the  district  court,  the  time 
within  which  he  may  move  for  a  new  trial  is  certainly  lim- 
ited to  one  year  from  the  date  of  such  judgment.  Wliy 
should  he  be  given  a  longer  period  because  he  is  disposed 
to  be  litigious?  Wliy  should  be  he  permitted  to  lengthen 
the  time  by  instituting  an  appellate  proceeding  and  con- 
ducting it  leisurely  to  judgment?  We  can  not  believe  that 
the  legislature  would  have  required  a  party  to  be  expe- 
ditious and  diligent  in  applying  for  a  new  trial  at  one  stage 
of  the  case  if  it  intended  to  allow  him  to  take  his  own 
time  at  another  stage.  The  period  of  limitation  should, 
it  would  seem,  begin  to  run  from  the  date  of  the  decision 
in  the  district  court,  for  the  trial  there  may,  and  frequently 
does,  suggest  the  possible  existence  of  other  material  evi- 


782  Trial  Practice  [Chap.  17 

dence.  The  trial  in  this  court,  however,  reveals  nothing 
with  respect  to  the  facts  of  the  case  that  was  not  known 
before. 

The  petition  for  a  new  trial,  if  presented  in  apt  time, 
may  be  entertained  by  the  district  court  although  the  cause 
be  pending  in  this  court  for  review.  Such  is  the  obvious 
meaning  of  the  statute,  and  such  is  the  construction  given 
like  statutes  in  other  jurisdictions.  Cook  v.  Smith,  58  la. 
607 ;  Gibson  v.  Manly,  15  111.  140.  A  party  desiring  to  ob- 
tain a  new  trial  under  the  jnovisions  of  section  318  of  the 
Code  has,  therefore,  the  right  in  every  case  to  make  his 
application  within  oneyear  from  the  date  of  the  judgment 
in  the  district  court,  and  that  court  has  autliority  to  enter- 
tain his  petition  and  grant  the  relief  demanded,  although 
the  cause  may  be  pending  for  review  in  this  court.  The 
legislature  did  not  intend  to  say  that  the  remedy  which  it 
provided  should  be  available  under  all  circumstances  for 
one  year,  and  might,  at  the  option  of  the  complaining 
party,  be  made  available  for  an  indefinitely  longer  period. 
This  conclusion  is  in  harmony  with  the  dictum  of  Chief 
Justice  Maxwell  in  Bradshaw  v.  State,  19  Neb.  644. 

The  judgment  is 

Affirmed} 

iln  Henry  v.  Allen  (1895)  147  N.  Y.  347,  41  N.  E.  694,  the  appellant 
moved  for  an  order  that  the  case  be  remanded  to  the  supreme  court,  where 
the  case  had  been  tried,  in  order  to  enable  him  to  move  for  a  new  trial. 
It  was  denied  on  the  ground  that  the  pendency  of  the  appeal  was  no 
bar  to  a  motion  in  the  court  below  for  a  new  trial.  The  court  said:  "If  the 
Supreme  Court,  in  the  exercise  of  its  discretion,  grants  the  motion  for  a  new 
trial,  the  legal  effect  will  be  the  vacating  of  the  judgment  from  which  the 
appeal  has  been  taken  to  this  court,  and  a  motion  to  dismiss  the  appeal  would 
then  be  proper." 


HERZ  V.  FRANK. 

Supreme  Court  of  Georgia.       1898. 
104  Georgia,  638. 
Simmons,  C.  J. 


*    *    * 


*     *     *     This  court  has  in  numerous  cases  decided,  rz 
effect,  that  where  a  motion  for  new  trial  is  made  in  term 


Sec.  12]  New  Trials  783 

and  an  order  taken  for  it  to  be  heard  in  vacation,  the  term 
of  the  court,  for  that  particular  case,  has  not  adjourned  but 
is  still  open.  In  the  case  of  Stone  v.  Taylor,  63  Ga.  309, 
Bleckley,  J.,  in  treating  this  subject,  said:  ''The  order 
taken  in  term,  to  hear  the  motion  in  vacation,  put  the  judge 
in  full  possession  of  the  case  at  the  time  appointed,  and 
continuances  from  time  to  time  were  had,  so  that  there 
was  no  gap  or  break.  It  was  as  if  the  first  day  had  been 
lengthened,  or  all  the  sittings  had  taken  place  at  different 
hours  of  the  same  day.  *  *  *  He  had  exactly  the  same 
power  in  that  respect  as  if  he  had  been  sitting  in  term-  and 
so  had  he  in  respect  to  adjourning  over  from  one  day  to 
another.  When  a  court  is  once  on  foot  in  a  regular,  legiti- 
mate way,  it  requires  no  consent  of  parties  to  run  it.  The 
law  makes  it  self-supporting.  The  motion  for  a  new  trial 
did  not  perish  on  the  judge's  hands,  but  kept  its  vitality 
until  he  passed  judgment  refusing  to  grant  it.  To  that 
judgment  a  writ  of  error  lies."  In  many  other  cases  the 
court  has  held,  that  where  an  order  is  taken  to  hear  a  mo- 
tion upon  a  certain  day  in  vacation,  unless  the  judge  con- 
tinues it  by  another  order  on  that  day,  he  loses  jurisdiction 
of  the  case.  In  the  case  of  Arnold  v.  Hall,  70  Ga.  445,  a 
motion  for  new  trial  was  set  for  hearing  on  a  particular 
day,  and  four  days  thereafter  the  judge  approved  the  brief 
of  evidence  and  granted  a  new  trial.  This  court  held  that 
the  judge  had  no  jurisdiction  to  pass  the  order  approving 
the  brief  of  evidence  or  to  grant  the  new  trial.  The  rea- 
sons for  these  decisions  must  have  been  that,  when  the 
judge  failed  to  act  upon  the  day  set  in  the  order,  the  term 
of  court  expired  as  to  the  case  set  for  that  day.  An  or- 
der, taken  in  term,  to  hear  in  vacation  a  motion  for  a  new 
trial,  operates,  in  our  opinion,  to  keep  the  regular  term  of 
the  court  open  as  to  that  particular  case  until  it  is  passed 
upon  by  the  judge.  *    *    * 


784  Trial  Peactice  [Chap.  17 

PEOPLE  V.  BANK  OF  SAN  LUIS  OBISPO. 

Supreme  Court  of  California.      1910. 
159  California,  65. 

Henshaw,  J. 

Under  the  Banking  Act  of  1903,  (Stats.  1903,  c.  266). 
action  was  begun  in  the  name  of  the  people  of  the  state  of 
California  by  the  attorney-general,  as  contemplated  by  the 
provisions  of  the  act,  for  a  decree  declaring  the  defendant 
Bank  of  San  Lnis  Obispo  insolvent,  ordering  it  into  invol- 
untary liquidation  and  restraining  it  from  the  transaction 
of  a  banking  business.  This  action  proceeded  to  judg- 
ment in  accordance  with  the  complaint  of  the  People  and 
a  receiver  was  appointed  by  the  court  to  administer  its 
affairs  in  liquidation.  On  appeal  to  this  court  the  judg- 
ment of  the  trial  court  was  in  all  respects  affirmed  {People 
V.  Bank  of  San  Luis  Obispo,  154  Cal.  194,  97  Pac.  306),  and 
this  judgment  became  final  in  September,  1908.  On  Juno 
19,  1908,  the  trial  court  denied  the  defendant  bank's  mo- 
tion for  a  new  trial  and  from  this  order  an  appeal  was 
taken  to  this  court.  Pending  the  decision  on  this  appeal 
from  the  trial  court's  order  refusing  to  grant  the  motion 
for  a  new  trial,  the  Banking  Act  of  1903,  (Stats.  1903,  c. 
266).  under  the  authoritv  of  which  this  action  was  prose- 
cuted and  these  proceedings  had,  was  repealed  by  the 
Banking  Act  of  1909,  (Stats.  1909,  c.  76),  which  latter  act 
made  no  provision  for  continuing  in  force  any  pending  pro- 
ceedinsrs  or  litigation  under  the  repealed  act. 

The  Bank  of  San  Luis  Obispo  now  moves  this  court  to 
vacate  and  set  aside  the  judgment  given  against  it,  and 
to  direct  the  trial  court  to  dismiss  this  action  upon  the 
ground  that  the  repeal  of  the  Banking  Act  of  1903  put 
an  end  to  all  litigation  pending  under  it,  and  that  within 
the  meaning  of  the  law  the  action  of  the  People  of  the 
State  of  California  against  the  Bank  of  San  Luis  Obispo 
was  litigation  pending  and  undetermined.  The  principle 
which  appellant  invokes  has  thus  been  stated:  ''When  a 
cause  of  action  is  founded  on  a  statute,  a  repeal  of  the 
statute  before  final  judgment  destroys  the  right,  and  a 


Sec.  12]  New  Trials  785 

judgment  is  not  final  in  this  sense  so  long  as  the  right  of 
exception  thereto  remains."  (1  Lewis'  Southerland,  Stat- 
utory Construction,  2d  ed.,  p.  285.)  *    *    * 

********** 

*  *  *  In  case  of  a  statute  conferring  civil  rights  or 
powers,  the  repeal  operates  to  deprive  the  citizen  of  all 
such  rights  or  powers  which  are  at  the  time  of  the  repeal 
inchoate,  incomplete  and  unperfected.  In  the  case  of 
statutes  conferring  jurisdiction,  the  repeal  operates  by 
causing  all  pending  proceedings  to  cease  and  terminate  at 
the  time  and  in  the  condition  which  existed  when  the  repeal 
became  operative.  In  cases  of  judgment  pending  upon 
appeal,  the  rule  of  decision  is  that  the  proceedings  abate 
and  the  judgment  falls.  But  the  general  expressions  to 
this  effect  employed  in  the  decisions,  are  to  be  read  in 
each  case  in  the  light  of  the  facts  w^hich  are  there  disclosed. 
Here  the  wise  admonition  of  Chief  Justice  Marshall  in 
Cohens  v.  Virginia,  6  Wheat.  399,  (5  L.  Ed.  257),  applies 
with  peculiar  force:  ''It  is  a  maxim  not  to  be  disregarded, 
that  general  expressions  in  every  opinion  are  to  be  taken 
in  connection  with  the  case  in  which  those  expressions  are 
used.  If  they  go  beyond  the  case,  they  may  be  respected, 
but  ought  not  to  control  the  judgment  in  a  subsequent  suit, 
when  the  very  point  is  presented  for  decision.  The  rea- 
son of  this  maxim  is  obvious.  The  question  before  the 
court  is  investigated  with  care  and  considered  in  its  full 
extent,  and  other  principles  which  may  serve  to  illustrate 
it,  are  considered  in  their  relation  to  the  case  decided,  but 
their  possible  bearing  on  all  the  other  cases  is  seldom  com- 
pletely investigated."  In  every  case  where,  after  judg- 
ment, the  proceeding  has  been  declared  to  be  "pending" 
there  will  be  found  a  direct  appeal  from  the  judgment, 
which  direct  appeal  either  suspended  the  judgment  so  that 
it  was  not  final  and  enforceable,  or,  as  in  Schooner  General 
Pinhiey  v.  United  States,  9  U.  S.  281,  (3  L.  Ed.  101),  worked 
a  removal  of  the  cause  to  the  appellate  court,  where  it  was 
to  be  tried  de  novo.  The  reason  given  why  the  proceed- 
ing must  abate  under  these  circumstances  is  that,  because 
of  the  suspension  of  the  judgment  by  appeal,  it  is  without 
finality;  that  to  give  it  finality  the  court  of  appeals  must 
itself  pronounce  its  judgment,  and  that  in  pronouncing  its 
judgment  it  must  be  governed  by  the  existing  law.  There- 
T.  p.— 50 


786  Trial  Practice  [Chap.  17 

fore,  when  it  finds  that  by  the  existing  law  the  previous  law, 
under  which  alone  validity  could  be  given  to  the  judg- 
ment, has  been  repealed,  the  sole  prop  and  foundation  for 
support  of  the  judgment  has  been  removed,  and  of  neces- 
sity it  must  be  declared  null  and  void.  No  case,  however, 
has  been  found,  and  we  venture  to  say  none  can  be  found, 
where  a  judgment  which  has  been  affirmed  after  direct  ap- 
peal, and  has  by  such  affirmance  become  final  during  the 
existence  of  the  statute  supporting  it,  where  the  judgment 
itself  has  been  in  the  process  of  execution  within  the  law, 
and  where  rights  have  arisen  by  virtue  of  this  legal  execu- 
tion of  the  judgment,  has  ever  been  held  to  be  destroyed 
by  a  repeal  of  the  statute  supporting  it  because  the  col- 
lateral proceeding  of  an  appeal  from  an  order  denying  a 
new  trial  is  pending  without  supersedeas  or  stay-bond. 
And  to  this  consideration  we  now  come. 

*  *  *  In  Harris  v.Banihart, 97  Cal  5^6,  {32'PaG.5S9), 
the  matter  is  discussed  and  the  conclusions  of  the  court 
may  be  summarized  as  follows :  A  motion  for  a  new  trial, 
in  the  absence  of  an  order  of  the  court  to  that  effect,  does 
not  stay  or  suspend  the  operation  of  a  final  judgment.  An 
action,  under  section  1049  of  the  Code  of  Civil  Procedure, 
is  to  be  deemed  pending  while  an  appeal  from  the  judgment 
is  pending,  or  until  the  time  for  such  an  appeal  has  ex- 
pired, but  when  the  judgment  upon  appeal  has  been  deter- 
mined by  an  affirmance  of  the  judgment,  or  when  the  time 
for  appeal  has  expired,  the  judgment  is  admissible  in  evi- 
dence as  res  adjudicata  and  to  raise  an  estoppel  in  bar  of 
the  action.  The  same  ruling  as  to  the  effect  of  a  pending 
motion  for  a  new  trial  upon  the  finality  of  a  judgment  is 
declared  in  Young  v.  Brelie,  19  Nev.  379,  (3  Am.  St.  Rep. 
892, 12  Pac.  564),  and  the  soundness  of  the  rule  is  intimated 
bv  the  supreme  court  of  the  United  States  in  Euhhell  v. 
United  States,  171  U.  S.  203,  (18  Sup.  Ct.  828,  43  L.  Ed.. 
136),  where  it  is  said:  ''Indeed,  it  may  well  be  doubted 
whether  the  pendency  of  a  motion  for  a  new  trial  would  in- 
terfere in  any  way  with  the  operation  of  the  judgment  as 
an  estoppel." 

Tn  Spnnagal  v.  Bellinger,  38  Cal.  284,  it  is  said:  ''Under 
our  system,  from  the  entry  of  the  verdict  or  filing  of  the 
findings  of  the  court,  the  motion  for  new  trial  is  a  kind  of 
episode,  or  in  a  certain  sense,  a  collateral  proceeding — a 


Sec.  12]  New  Trials  787 

proceeding  not  in  the  direct  line  of  the  judgment;  for  the 
judgment  may  be  at  once  entered  and  even  executed,  while 
a  motion  for  a  new  trial  is  pending  in  an  independent  line 
of  proceeding,  which  ends  in  an  order  renewable  on  an  in- 
dependent appeal.  The  motion  may  be  heard  and  decided 
and  an  ap])eal  taken  on  its  own  independent  record,  while 
the  proceedings  on  and  subsequent  to  the  judgment  may 
be  still  regularly  going  on,  and  even  an  independent  ap- 
peal taken  in  that  line."  And  this  language  is  quoted  with 
approval  by  this  court  in  the  later  case  of  Brison  v.  Brison, 
90  Cal.  323,  (27  Pac.  186);  while  to  the  same  effect  is 
Houser  d  Haines  Co.  v.  Hargrove,  129  Cal.  90,  (61  Pac. 
660),  and  Knoivles  v.  Thompson,  133  Cal.  247,  (65  Pac. 
468).  A  broad  difference  exists  between  the  operation 
and  legal  effect  of  a  direct  appeal  from  a  judgment  (which, 
while  the  appeal  is  pending,  in  the  generality  of  cases  oper- 
ates to  stay  the- judgment  absolutely,  and  in  all  cases  oper- 
ates to  destroy  for  it  any  claim  of  finality),  and  the 
"collateral  proceeding"  of  an  appeal  from  an  order  deny- 
ing a  motion  for  a  new  trial  taken  after  the  judgment  it- 
self has  become  an  enforceable  finality  by  reason  of  its 
affirmance  upon  direct  appeal.  In  the  former  case  the 
courts,  when  the  law  which  alone  will  support  the  judg- 
ment given  has  been  withdrawn,  have  felt  and  expressed 
themselves  as  unable  to  proceed  further  with  the  litigation, 
since  they  themselves  must  pronounce  a  judgment,  and 
can  pronounce  it  only  under  the  authority  of  existing  law. 
In  the  case  of  appeal  from  an  order  refusing  a  new  trial 
wliere  no  stay  has  been  granted  and  where,  as  here,  the 
judgment  has  become  a  finality,  the  decision  which  the 
court  renders  is  not  upon  the  judgment  appealed  from,  but 
upon  the  order  appealed  from,  and  while  the  effect  of  its 
reversal  of  the  order  will,  of  course,  be  necessarily  the  set- 
ting aside  of  the  judgment,  this,  after  all,  is  but  an  inci- 
dent to  the  ruling  which  it  makes,  which  ruling  goes  not 
at  all  to  the  sufficiency  or  finality  of  the  judgment,  but  only 
as  to  whether,  within  familiar  rules  and  limitations,  the 
judgment  was  fairly  given.  Herein  our  motion  for  a 
new  trial  differs  essentially  from  the  common-law  motion 
which  was  always  heard  and  determined  before  entrv  of 


788  Trial  Peactice  [Chap.  17 

judgment,^  so  that  the  appeal  from  the  judgment  embraced 
all  questions.  Under  our  system,  the  appeal  from  an 
order  denying  a  new  trial  is  a  separate  and  independent 
appeal,  which,  if  prosecuted  in  time,  may  be  taken  after 
the  judgment  has  become  final.  Excepting  when  ordered 
by  supersedeas  or  permitted  by  stay-bond,  it  in  no  way  sus- 
pends the  judgment  nor  interferes  with  its  finality.  It  is 
in  this  respect  more  in  the  nature  of  an  equitable  bill  of 
review  which,  while  countenanced  in  proper  cases,  even 
after  a  judgment  of  affirmance  upon  appeal,  never  oper- 
ated in  and  of  itself  to  suspend  the  decree.      Indeed  it  has 

1  The  common  law  rule  is  in  force  in  several  jurisdictions  in  the  United 
States.  Thus  in  Whitney  v.  Karner  (1878)  44  Wis.  563,  the  court  said: 
"The  learned  circuit  judge  who  heard  and  decided  this  motion,  seems  to  have 
entertained  the  opinion  that  the  entry  of  judgment  was  no  objection  to  enter- 
taining a  motion  to  set  aside  the  verdict  and  for  a  new  trial  upon  the  merits; 
and  it  is  quite  probable  that  such  opinion  prevails  to  some  extent  amongst  the 
circuit  judges  and  members  of  the  bar;  but  it  is  in  direct  conflict  with  the 
decision  of  this  court. 

"In  the  case  of  Hogan  v.  State,  [36  Wis.  232],  the  present  learned  chief 
justice  says:  'It  is  certain  that  at  common  law,  motions  for  a  new  trial  must 
be  made  after  verdict  and  before  judgment.  It  would  be  no  greater  ab- 
surdity to  move  for  a  new  trial  at  common  law  before  verdict,  than  after 
judgment.'  And  in  the  case  of  Scheer  v.  Keown,  [34  Wis.  349],  Chief  Jus- 
tice Dixon  says:  'The  practice,  as  indicated  by  several  cases  which  have  come 
before  this  court,  and  so  far  as  we  understand,  has  always  been,  if  the  party 
wishes  to  move  at  a  subsequent  term,  on  a  case  or  bill  of  exceptions'  made  or 
settled,  to  obtain  a  stay  of  proceedings,  so  as  to  prevent  the  entry  of  judg- 
ment until  after  the  motion  could  be  heard  and  determined.' 

"It  would  seem  to  be  irregular  to  entertain  a  motion  to  set  aside  a  verdict 
and  for  a  new  trial  after  judgment  entered,  at  the  term  at  which  the  same  was 
entered,  unless  such  motion  was  joined  with  a  motion  to  vacate  the  judgment 
also. ' ' 

But  the  better  rule  seems  to  be  the  contrary,  permitting  the  motion  to  be 
made  regularly  after  judgment  entered.  Thus  in  Woodward  Iron  Co.  v. 
Brown  (1910)  167  Ala.  316,  52  So.  829,  the  court  said:  "Common  law  courts 
have  inherent  power  to  grant  new  trials,  and  at  common  law  the  judgment 
was  not  rendered  until  the  motion  for  new  trial  was  disposed  of  (29  Cyc. 
722,  727),  but  the  usage  in  our  courts  and  others  is  to  enter  the  judgment 
when  the  verdict  is  returned,  and  the  party  has  during  the  term  of  the  court 
to  make  the  motion  for  a  new  trial.  The  effect  of  the  motion  is  to  suspend 
the  judgment  until  the  motion  is  disposed  of,  and  if  it  is  granted,  it  'wipes 
out  the  verdict;  no  judgment  can  be  rendered  on  it.'  Hilliard  on  New 
Trials,  p.  59." 

In  Conklin  v.  Hinds  (1871)  16  Minn.  457,  the  court  said:  "But  the  statute 
gives  the  right  to  move  for  a  new  trial  upon  the  report  of  the  referee  or  de- 
cision of  the  judge,  and  allows  no  opportunity  to  make  such  motion  before 
judgment.  The  party  aggrieved  must  therefore  necessarily  have  the  right 
to  make  it  after  judgment." 

In  some  jurisdictions,  by  reason  of  statutes,  no  proceeding  for  a  new  trial 
can  be  instituted  before  judgment.  Thus  in  McTntyre  v.  MacGinniss  (1910) 
41  Mont.  87,  108  Pac.  353,  the  court  said:  "Proceedings  on  the  motion  for  a 
new  trial  were  first  instituted  by  MacGinniss  by  serving  his  notice  of  inten- 
tion after  the  decision  was  made,  but  before  entry  of  judgment.  These  pro- 
ceedings were  premature.  Under  the  statute,  a  i>arty  intending  to  move  for 
a  new  trial  may  do  so  by  serving  his  notice  within  ten  days  after  the  notice 
of  entry  of  judgment,  but  not  before.       (Revised  Codes,  sec,  C796.)  " 


Sec.  12]  New  Teials  789 

been  so  expressly  declared  by  tliis  court  in  Foivden  Admr. 
r.  Pacific  Coast  S.  S.  Co.,  149  Cal.  151,  154,  (86  Pac.  178). 

We  conclude,  therefore,  that  as  the  judgment  had  be- 
^'ome  final  wliile  the  statute  authorizing  the  action  was  in 
force,  its  finality  is  not  disturbed  by  a  pending  motion  for 
a  new  trial  which  does  not  operate  in  any  way  to  stay  the 
execution  of  the  judgment;  that  as  the  statute  authorizes 
the  people  upon  the  relation  of  the  attorney-general  to  pro- 
ceed in  equity  to  have  the  bank  declared  insolvent,  leaving 
the  proceedings  governing  the  action  those  which  gener- 
ally obtain  in  the  practice  of  this  state,  the  repeal  of  the 
statute  did  not  destroy  the  right  of  the  appellant  to  be 
heard  upon  this  motion  for  a  new  trial ;  that  if  the  appeal 
from  the  motion  for  a  new  trial  should  be  granted,  it  would 
necessarily  hav.e  the  effect  of  vacating  the  judgment,  and 
that  by  virtue  of  the  repeal  the  action  could  then  no  longer 
be  prosecuted;  that  if,  however,  the  appeal  from  the  order 
denying  the  motion  for  a  new  trial  should  be  denied  and 
the  order  affirmed,  the  repeal  of  the  statute  would  not  af- 
fect any  proceeding  taken  under  it  and  under  the  judgment 

heretofore  affirmed. 

********** 

Wherefore  the  motion  to  vacate  and  annul  the  judgment 
and  dismiss  the  proceedings  is  denied,  and  the  order  deny- 
ing defendant's  motion  for  a  new  trial  is  affirmed. 

Shaw,  J.,  Lorigan,  J..  Melvin,  J.,  and  Sloss,  J.,  con- 
curred. 

Rehearing  denied. 


SEWAED  V.  CEASE. 

Supreme  Court  of  Illinois.       1869. 

50  Illinois,  228. 

Mr.  Justice  Lawrence  delivered  the  opinion  of  the 
Court : 

It  is  very  seldom  that  a  court  of  chancery  will  interfere 
to  grant  a  new  trial  at  law,  though  its  jurisdiction  to  do  so 
is  undoubted.      In  this  case,  a  bill  was  filed  for  that  pur- 


790  Trial  Peactice  [Chap.  17 

pose,  and  the  case  having  been  heard  on  a  motion  to  dis 
miss  the  bill,  the  relief  prayed  was  refused.  We  are  of 
opinion,  however,  that  the  motion  shonld  have  been  over- 
ruled, and  if,  after  the  canse  is  at  issue  and  proofs  taken, 
the  case  made  by  the  bill  is  sustained,  a  new  trial  should 
be  awarded.  For  the  present,  we  must  take  the  allega- 
tions of  the  bill  as  true,  and  they  show,  not  merely  that 
the  only  evidence  upon  which  the  judgment  at  law  was  ob- 
tained was  false,  but  that  the  witness  who  gave  it  has  vol- 
untarily made  an  affidavit  of  its  falsity  before  a  magistrate, 
stating  his  desire  to  retract  the  same,  and  this  affidavit  is 
made  an  exhibit  with  the  bill.  This,  then,  is  not  a  case  of 
conflicting  evidence.  An  unrighteous  judgment  has  been 
obtained  upon  perjured  testimony,  and  the  perjury  is 
shown,  not  by  uncertain  admissions  of  the  perjurer,  but  by 
his  own  oath  voluntarily  made  for  the  purpose  of  repair- 
ing his  wrong.  A  stronger  case  could  hardly  arise.  The 
motion  to  dismiss  should  have  been  overruled,  and  the  de- 
fendant required  to  answer.  After  the  answer  is  filed  and 
the  cause  is  at  issue,  it  will  be  incumbent  on  the  complain- 
ant to  take  the  testimony  of  the  witness,  when  the  defend 
ant  will  have  an  opportunity  of  cross-examining,  and  if  the 
witness  adheres  to  the  statements  of  his  affidavit,  and  there 
is  no  evidence  he  has  been  subjected  to  corrupt  influences, 
the  court  will  award  a  new  trial. 

The  decree  is  reversed  and  the  cause  remanded. 

Decree  reversed} 

1  ' '  Applications  to  courts  of  chancery,  for  the  purpose  of  granting  new 
trials  at  law,  and  the  interposition  of  the  Chancellor,  whenever  a  proper 
case  is  made  out,  may  be  warranted  as  well  upon  the  score  of  principle  as  of 
precedent. 

"An  injunction  to  f-tny  jtroceedings  upon  an  unjust  judgment,  and  for  a 
new  trial,  is  a  remedy  recognized  and  approved  by  courts  of  equity.  These 
remedies  are  to  l)e  enforced  under  the  operation  of  established  forms  and 
rules  of  proceeding,  instituted  as  they  are  for  th-  development  of  truth  and 
justice. 

"Anciently,  courts  of  equity  exercised  a  familiar  jurisdiction  over  trials  at 
law,  and  compelled  the  successful  party  to  submit  to  a  new  trial,  or  to  be 
perpetually  enjoined  from  proceeding  on  his  verdict.  (Floyd  v.  Jayne,  6 
John.  Ch.  Eep.  479.) 

"But  this  practice,  except  in  cases  the  most  extraordinary,  has  long  since 
gone  out  of  use;  because  courts  of  law  are  now  competent  to  grant  new 
trials,  and  are  in  the  constant  exercise  of  that  right  to  a  most  liberal  extent. 
Anciently,  courts  of  law  did  not  grant  new  trials;  and  in  those  days,  courts 
of  equity  exercised  that  jurisdiction  over  trials  at  law,  and  compelled  the  suc- 
cessful party  to  submit  to  a  new  trinl  when  justice  required  it.  But,  even 
in  that  age,  the  Court  of  Chancery  proceeded  with  great  caution.  A  new 
trinl  was  never  rrrnnted.  unless  the  application  was  founded  upon  some 
clear   case   of   fraud   or   injustice,   or   upon    some   newly   discovered   evidence, 


Sec.  13]  New  Trials  791 

\\  hich  the  party  could  not  possibly,  by  any  vigilance  or  industry  of  his,  have 
had  the  bnefit  of,  on  the  first  trial. 

' '  In  general,  where  it  would  have  been  proper  for  a  court  of  law  to  have 
granted  a  new  trial,  if  the  application  had  been  made  while  that  court  had 
1  ower  to  do  so,  it  is  equally  proper  for  a  court  of  equity  to  grant  a  new 
trial,  if  the  application  be  made  on  grounds  arising  after  the  court  of  law 
ceased  to  have  power  to  act. 

' '  The  general  rule  is,  that  courts  of  chancery  will  not  interfere  after  ver- 
dict and  judgment  at  law,  except  in  cases  of  fraud,  or  in  extraordinary  cases 
where  manifest  injustice  would  be  done;  nor  where  the  party  might  have  de- 
fended himself  fully  at  law  and  neglected  it.  Great  abuse  would  be  made 
of  a  contrary  doctrine,  by  drawing  within  the  jurisdiction  of  equity,  as  by  a 
side  wind,  almost  all  causes  decided  at  law.  The  high  powers  intrusted  to 
Chancery,  to  promote  the  purposes  of  justice,  should  not  be  abused  to  the 
vexation  of  citizens,  and  the  unsettling  solemn  decisions  of  other  courts, 
where  it  is  always  to  be  presumed  that  full  justice  has  been  done."  3  Gra- 
ham &  Waterman  on  New  Trials,  1455  et  seq. 

For  a  further  discussion  of  this  subject  see:  Black  on  Judgments,  $  357; 
Freeman  on  Judgments,  §  485;  3  Pomeroy's  Equity  Jurisprudence,  $  1365; 
Yancy  v.  Downer  (1824)  5  Littell  (Ky.)  8,  15  Am.  "Dec.  35;  Wynne  v.  New- 
man's Adm'r  (1881')  75  Va.  811;  Kansas  &  Arkansas  Valley  R.  R.  Co.  v. 
Fitzhugh  (1895)  61  Ark.  341,  33  S.  W.  960. 


Section  13.      Form  of  Motion. 

MEMPHIS  STREET  RAILWAY  COMPANY  V. 
JOHNSON. 

Supreme  Court  of  Tennessee.      1905. 

114  Tennessee,  632. 

Mr.  Justice  Shields  delivered  the  opinion  of  the  Court. 

This  action  is  brought  by  W.  B.  Johnson  against  the 
Memphis  Street  Railway  Company  to  recover  damages  for 
personal  ini'iiries  sustained  by  him,  through  the  negligence 
of  the  defendant,  while  plaintiff  was  a  passenger  on  one  of 
its  cars. 

The  case  was  submitted  to  a  jury,  and  a  verdict  found 
for  the  plaintiff.  The  motion  of  the  defendant  for  a  new 
trial  was  overruled,  and  judgment  entered.  The  defend- 
ant tendered  a  bill  of  exceptions  to  this  action  of  the  court, 
which  was  signed  and  filed,  and  the  case  is  now  before  us 
upon  appeal  in  the  nature  of  a  writ  of  error. 

The  errors  assigned  are  predicated  upon  the  refusal  of 
the  trial  judge  to  set  aside  the  verdict  of  the  jury  and  grant 
the  defendant  a  new  trial  because  of  the  admission  of  cer- 


792  Teial  Pkactice  [Chap.  17 

tain  evidence  offered  by  the  plaintiff  over  the  objection  of 
the  defendant,  and  his  refusal  to  give  in  charge  to  the 
jury  certain  written  instructions  submitted  by  counsel  for 
the  railway  company  at  the  conclusion  of  the  charge  in 
chief. 

For  the  defendant  in  error  it  is  insisted  that  these  as- 
signments of  error  cannot  be  considered  by  this  court  be- 
cause the  errors  complained  of  were  not  properly  set  out 
and  relied  upon  as  grounds  for  a  new  trial  in  the  motion 
made  by  the  plaintiff  in  error  in  the  trial  court  for  that 
purpose,  as  required  by  a  rule  of  that  court,  and  passed 
upon  by  the  presiding  judge. 

The  rule  of  the  circuit  court  of  Shelby  county  in  relation 
to  motions  for  new  trials,  which  is  in  the  record,  requires 
all  grounds  upon  which  a  new  trial  is  asked  to  be  stated 
and  set  out  separately  in  a  written  motion  and  entered 
upon  the  minutes  of  the  court;  and  all  errors  not  so  set 
out  are  presumed  to  be  waived,  and  will  not  be  considered 
on  the  hearing  of  the  motion. 

The  plaintiff  in  error  attempted  to  comply  with  this  rule, 
and  the  grounds  for  a  new  trial  upon  which  these  assign- 
ments are  based  are  stated  in  its  motion  in  these  words : 

''(1)  For  error  in  the  admission  and  exclusion  of  evi- 
dence. 

''(2)  The  court  erred  in  refusing  the  special  instruc- 
tions asked  by  the  defendant." 

The  jurisdiction  of  this  court  is  exclusively  appellate, 
and  it  can  only  pass  upon  matters  which  the  record  shows 
have  been  considered  and  adjudged  by  the  trial  court  from 
which  the  case  has  been  appealed.  The  errors  reviewed 
and  .corrected  by  it  are  of  two  classes :  Those  which  ap- 
pear upon  the  face  of  the  record  proper,  as  erroneous  rul- 
ings in  sustaining  or  overruling  motions,  and  demurrers 
challenging  the  sufficiency  of  pleadings;  and  errors  com- 
mitted in  allowing  or  overruling  motions  for  new  trials  upon 
grounds  brought  into  the  record  by  bills  of  exceptions,  as 
for  improperly  refusing  a  continuance,  the  admission  of 
incompetent  evidence,  or  the  rejection  of  competent  evi- 
dence, error  in  instructing  the  jury,  or  refusing  further  in- 
structions seasonably  requested  in  proper  form,  for  want 
of  evidence  to  sustain  the  verdict,  or  other  similar  ground. 
It  does  not  act  directly  upon  errors  of  the  latter  class, 


Sec.  13]  New  Trials  793 

which  are  not  a  part  of  the  record  without  a  bill  of  excep- 
tions, but  upon  the  action  of  the  trial  judge  for  refusing  a 
new  trial  because  of  such  errors  committed  by  him,  or  oth- 
er^vise  occurring  in  the  progress  of  the  case,  as  they  may 
be  waived  or  corrected  before  verdict.  Therefore,  before 
the  jurisdiction  of  this  court  can  be  invoked  and  refief  had 
on  account  of  errors  of  the  second  class,  they  must  be  con- 
sidered and  acted  upon  by  the  trial  judge  in  the  disposi- 
tion of  a  motion  made  by  the  losing  party  to  set  aside  the 
verdict  of  the  jury  and  allow  him  a  new  trial.  Another 
reason  why  all  errors  which  may  affect  the  integrity  of  the 
verdict  should  be  brought  to  the  attention  of  the  trial 
judge  in  a  motion  for  a  new  trial  is  that  he  may  have  an 
opportunity  to  correct  them,  if  necessary,  by  granting  a 
new  trial,  and  thus  save  the  inconvenience,  delay,  and  ex- 
pense attending  appellate  proceedings. 

********** 

We  are  now  to  determine  whether  or  not  the  grounds 
upon  which  these  assignments  of  error  are  predicated  are 
sufficiently  set  out  in  the  motion  for  a  new  trial.  It  seems 
to  be  well  settled  that  the  statement  of  the  grounds  in  the 
motion  must  be  sufficient  to  direct  the  attention  of  the  court 
and  opposing  counsel  to  the  error  or  irregularity  relied 
upon  to  vitiate  the  verdict. 

In  the  work  on  Pleading  &  Practice  last  quoted  from,  it 
is  further  said:  ^'The  general  rule  is  that  the  grounds  (for 
a  new  trial)  must  be  stated  so  specifically  as  to  direct  the 
attention  of  the  court  and  opposing  counsel  to  the  precise 
error  complained  of.  A  mere  statement  of  the  grounds, 
without  further  specifications,  will  therefore  be  insufficient. 
The  purpose  of  the  rule  is  to  direct  the  attention  of  the 
trial  judge  to  the  alleged  erroneous  rulings,  and  present  to 
tlie  appellate  court  the  precise  question  involved.  The 
safest  course  is  to  assign  each  error  with  the  same  particu- 
larity of  an  assignment  of  error  in  appeal.  *  *  *  But 
this  is  not  the  practice  in  most  of  the  States;  the  courts 
holding  that  it  is  sufficient  merely  to  assign  error  in  giv- 
ing: a  certain  construction  or  admitting  certain  e\'idence, 
without  stating  why  such  ruling  was  erroneous.  If  the 
grounds  for  a  new  trial  are  not  stated  in  the  motion,  it  may 
be  overruled  by  the  court,  and  disregarded  on  appeal.  All 
errors  known  at  the  time  of  filing  the  motion  must  be  in- 


794  Trial  Practice  [Chap.  17 

eluded  therein,  or  the  errors  omitted  will  be  deemed  to  have 
been  waived."  Ency.  of  Plead.  &  Prac.,  vol.  14,  pp.  882, 
883. 

Mr.  Elliott,  in  his  work  above  cited  (volume  2,  section 
991),^  says:  "The  law  presumes  the  verdict  to  be  correct. 
Hence  on  a  motion  for  a  new  trial  the  party  must  set  forth 
the  grounds  upon  which  he  intends  to  rely,  or  the  objec- 
tions will  be  considered  as  waived.  The  motion  should  be 
in  writing,  and  should  specify  with  reasonable  certainty 
all  the  rulings  deemed  to  be  erroneous.  It  is  to  be  kept  in 
mind  that  it  is  the  objections  specified  in  a  motion,  and 
those  only,  that  are  brought  up  for  review,  for  all  others 
properly  arising  on  a  motion  for  a  new  trial  are  deemed  to 
be  waived.  It  is  on  a  motion — as  it  is  written — that  the 
appellate  court  acts,  for,  as  to  objections  not  properly  pre- 
sented, the  presumption  is  in  favor  of  the  regularity  and 
legality  of  the  rulings  of  the  trial  court.  It  is  the  business 
of  the  party  who  takes  exceptions  to  show  that  the  decision 
is  wrong.  It  is  not  sufficient  that  he  succeeds  in  mystify- 
ing it  by  adopting  language  which  subjects  the  judge  to  the 
suspicion  that  he  did  not  understand  the  safest  ground  on 
which  to  place  it.  In  order  to  show  that  rulings  are 
wrong  it  must  appear  that  they  were  probably  injurious  to 
the  party  who  makes  complaint,  since  a  mere  harmless  er- 
ror will  not  warrant  a  reversal." 

The  text  in  both  of  these  works,  which  are  of  the  highest 
authority,  is  supported  by  numerous  decisions  of  other 
States,  many  of  which  are  predicated  upon  the  general 
rules  of  practice  of  courts  of  law. 

"We  are  of  the  opinion  that  the  grounds  set  out  in  the  mo- 
tion should  be  as  specific  and  certain  as  the  nature  of  the 
error  complained  of  will  permit.  Thus,  if  the  error  con- 
sists in  the  admission  or  rejection  of  evidence,  the  evidence 
admitted  or  rejected  should  be  stated.  If  it  be  for  affir- 
mative error  in  the  charge,  or  for  failure  to  give  an  in- 
struction properly  and  reasonably  presented,  it  should  set 
out  the  portion  of  the  charge  complained  of,  or  the  instruc- 
tion refused,  or  otherwise  definitely  identify  the  instruc- 
tion. If  it  be  for  misconduct  of  the  opposite  party  or  that 
of  the  jury,  the  facts  constituting  it  should  be  stated.  This 
was  not  done  in  this  case.      The  testimony  admitted  and 

1  Elliott  on  General  Practice. 


Sec.  13]  New  Tkjals  795 

that  excluded  is  not  stated — not  even  the  name  of  the  wit- 
ness given — and  the  instructions  requested  are  not  set  out 
or  sufficiently  identified. 

We  do  not  think  that  it  is  necessary  to  state  why  the  rul- 
ing complained  of  is  erroneous  as  fully  and  with  all  the 
strictness  required  in  assignments  of  error  in  this  court, 
hut  a  fair  statement  of  the  error  complained  of,  sufficient 
to  direct  the  attention  of  the  court  and  the  prevailing  pariy 
to  it,  is  all  that  is  required. 

Nor  was  it  necessary  for  the  successful  party  in  the  court 
lielow  to  there  object  to  the  form  of  the  motion,  because 
rules  of  this  character  are  made  in  the  interest  of  the  pub- 
lic, and  for  the  purpose  of  enabling  the  courts  to  speedily 
and  correctly  dispose  of  the  cases  pending  in  them,  and 
they  cannot  be  waived  by  litigants. 

We  are  of  the  opinion  that  no  sufficient  grounds  for  a 
new  trial  because  of  the  admission  of  incompetent  or  rejec- 
tion of  competent  testimony,  or  a  failure  to  give  in  charge 
to  the  jury  instructions  submitted  by  the  defendant,  were 
stated  in  the  motion  made  by  it  in  the  circuit  court,  and 
that  there  is  therefore  nothing  upon  which  these  assign- 
ments of  error  on  the  action  of  the  trial  judge  in  refusing 
to  set  aside  the  verdict  and  grant  a  new  trial  can  be  predi- 
cated ;  and,  under  the  practice  of  his  court,  in  cases  coming 
from  those  courts  having  rules  like  that  in  this  record,  not 
to  consider  the  assignments  of  error  upon  any  ground  not 
appearing  in  the  motion  for  a  new  trial,  these  assignments 
of  error  are  insufficient,  and  must  be  overruled. 

The  other  assignments  of  error  filed  by  the  plaintiff  in 
error  were  disposed  of  in  an  oral  opinion. 


KING  V.  GILSON. 
Supreme  Court  of  Missouri.      1907, 
206  Missouri,  264. 
W()()l)S0^^  J.  *     *     * 
The  motion  for  a  new  trial  was  filed  on  March  27,  1906, 


796  Trial  Practice  [Chap,  17 

and  one  of  the  grounds  assigned  therefor  is  in  words  as 
follows : 

**11.  Because,  since  the  trial  of  this  cause,  the  defend- 
ants have  discovered  new  and  important  evidence  material 
to  the  issues  submitted  to  the  jury,  which  evidence  is  not 
cumulative  in  character  and  which  evidence  was  unknown 
to  defendants  at  the  time  of  the  trial.'' 

On  the  same  daj^  the  court  granted  defendants  ten  days 
in  which  to  tile  affidavits  in  support  of  motion  for  new 
trial;  and  within  that  time  they  filed  the  affidavits  of  Dr. 
Waterhouse,  Arthur  Marshall,  Edward  Unwin  and  J.  H. 
Orr,  one  of  the  attorneys  for  the  defendants,  the  three  lat- 
ter stating  what  diligence  they  had  used  in  trying  to  dis- 
cover all  the  witnesses  and  evidence  in  the  case. 

The  plaintitfs  contend  that  the  action  of  the  court  in 
granting  a  new  trial  on  the  ground  of  newly-discovered  evi- 
dence was  erroneous. 

The  motion  for  new  trial  does  not  disclose  or  set  out  the 
newly-discovered  evidence  or  its  nature,  nor  does  it  give 
the  names  or  addresses  of  the  witnesses  by  whom  the  new- 
ly-discovered evidence  was  to  be  given,  nor  was  there  any 
•affidavit  filed  with  the  motion. 

'  The  motion  simply  states  that,  ''since  the  trial  of  this 
cause,  the  defendants  have  discovered  new  and  important 
evidence  material  to  the  issues  submitted  to  the  jury,  which 
evidence  is  not  cumulative  in  character,  and  which  evi- 
dence was  unknown  to  the  defendants  at  the  time  of  the 
trial." 

This  question  has  been  before  this  court  repeatedly,  and 
there  is  nothing  new  to  be  said  upon  it. 

In  the  case  of  State  v.  David,  159  Mo.  1.  c.  535,  this  court 
said:  ''A  new  trial  was  also  asked  upon  the  ground  of 
newly-discovered  evidence,  but  the  evidence  was  not  set 
out  in  the  motion.  The  mere  fact,  asserted  in  the  motion, 
that  the  newly-discovered  evidence  was  material,  did  not 
prove  it  to  be  so.  It  should  have  been  set  out  in  order 
that  the  court  might  pass  upon  its  materiality.  For  these 
reasons,  besides  others  unnecessary  to  mention,  this  ques- 
tion cannot  be  considered  by  this  court." 

And  in  the  case  of  State  v.  Welsor,  117  Mo.  1.  c.  582,  the 
laAV  applicable  to  this  question  was  stated  in  the  following 
language:     "In  the  case  of  State  v.  Ray,  53  Mo.  349,  Judge 


Sec.  13]  New  Tkials  797 

Sherwood,  in  delivering  the  opinion  of  the  court,  says : 
*In  the  State  v.  McLaughlin,  27  Mo.  Ill,  this  court  adopts, 
with  most  cordial  approval,  the  rules  as  laid  down  in 
Berry  v.  State,  10  Ga.  511,  by  Judge  Lumpkin,  in  respect  to 
new  trials,  on  the  ground  of  newly-discovered  evidence,  as 
follows:  ''The  application  must  show,  first,  that  the  evi- 
dence has  come  to  his  knowledge  since  the  trial;  second, 
that  it  was  not  owing  to  the  want  of  due  diligence  that  it 
did  not  come  sooner;  third,  that  it  is  so  material  that  it 
would  probably  produce  a  different  result  if  the  new  trial 
were  granted;  fourth,  that  it  is  not  cumulative;  fifth,  that 
the  affidavit  of  the"witness,  himself,  should  be  produced,  or 
its  absence  accounted  for;  sixth,  that  the  object  of  the  tes- 
timony is  not  merely  to  impeach  the  character  or  credit  of 
a  witness."  '  See,  also,  to  the  same  eifect,  State  v.  Rock- 
ett,  87  Mo.  666 ;  State  v.  Butler,  67  Mo.  63 ;  State  v.  Carr, 
1  Fost.  (N.  H.)  166." 

In  the  case  at  bar,  the  affidavits  were  not  filed  in  sup- 
port of  and  in  proof  of  the  newly-discovered  evidence 
stated  in  the  motion  for  a  new  trial,  because,  for  the  very 
obvious  reason,  there  was  no  such  evidence  stated  therein ; 
but  the  object  and  purpose  in  filing  them  was  to  bring  the 
evidence  itself  and  not  the  proof  thereof  to  the  attention  of 
the  court.  The  law  requires  such  evidence  to  be  set  out 
in  the  motion;  and  the  mere  fact  that  it  is  so  stated  does 
not  prove  it  to  be  true,  and  for  that  reason  its  truthfulness 
is  required  to  be  established  by  affidavits.  But  here  the 
defendants  are  trying  to  make  the  affidavits  serve  a  two- 
fold purpose;  first,  a  ground  for  a  new  trial,  and,  second, 
proof  of  the  statements  constituting  that  ground.  This 
cannot  be  done.  The  motion  for  a  new  trial  must  be  filed 
within  four  days  after  the  trial,  and  the  court  has  no  power 
to  extend  the  time  for  filing  it.  If  the  evidence  is  set  out 
in  the  motion,  then  this  court  has  repeatedly  held  that  the 
trial  court  may  give  the  parties  time  in  which  to  file  affi- 
davits in  support  thereof. 

The  defendants  state  in  their  motion  that  they  have  dis- 
covered new  evidence;  that  it  was  material  to  the  issues; 
that  it  was  not  cumulative,  and  that  if  admitted  in  evidence 
probably  a  different  result  would  be  reached  if  a  new  trial 
was  granted.  If  tliey  knew  such  evidence  existed  at  the 
time  the  motivon  wfis  written,  why  did  they  not  incorporate 


798  Trial  Practice  [Chap.  17 

it  into  the  motion  and  later  file  the  affidavits  in  support 
thereof? 

If  such  a  practice  as  is  contended  for  in  this  case  was 
permissible,  it  would  enable  the  parties  to  supplement  and 
add  to  their  motion  for  a  new  trial  after  the  expiration  of 
the  four  days  allowed  for  filing  it,  and  thereby  open  the 
door  to  temptation  and  fraudulent  conduct  in  bolstering 
up  motions  for  new  trials. 

[Affirmed  on  other  grounds.] 


RUTHERFORD  V.  TALENT. 

Supreme  Court  of  Montana  Territory.      1887, 
6  Montana,  112. 

Wade,  C.  J. 

This  is  a  motion  to  dismiss  the  appeal  for  the  reason  that 
no  sufficient  notice  of  motion  for  a  new  trial  was  given,  and 
that  no  motion  for  a  new  trial  was  filed. 

The  Code,  section  287,  provides  that  the  party  intending 
to  move  for  a  new  trial  must  file  with  the  clerk,  and  serve 
upon  the  adverse  party,  a  notice  of  his  intention,  designat- 
ing the  grounds  upon  which  the  motion  will  be  made,  and 
whether  the  same  will  be  made  upon  affidavits,  minutes  of 
the  court,  bill  of  exceptions,  or  a  statement  of  the  case.^ 

1  Various  methods  have  been  devised  by  which  the  data  necessary  for  the 
determination  of  a  motion  for  a  new  trial  may  be  presented  to  the  court. 

1.  The  minutes  of  the  court  may  be  ui^ed.  These  being  deemed  already  in 
existence  and  before  the  court,  a  party  moving  upon  them  is  required  to  pre- 
pare no  abstract  or  statement  of  the  proceedings  in  the  case,  upon  which  to 
base  his  claim  for  relief. 

"The  term  'minutes  of  the  court,'  as  used  in  subdivision  4,  §  5090,  Comp. 
Laws,  seems  to  have  no  well-defined  legal  meaning,  but  is  evidently  used  in 
that  section  a;i  referring  to  such  minutes  as  the  judge  may  make  of  the  evi- 
dence, and  to  his  recollection  of  the  same,  and  is  evidently  intended  to  re- 
lieve a  partj  from  the  expense  and  labor  of  preparing  a  statement  or  bill  of 
exceptions.  To  require  the  party  moving  for  a  new  trial  upon  the  minutes 
of  the  court  to  procure  a  transcript  of  the  stenographer's  notes,  and  cause 
the  same  to  be  filed,  would,  in  effect,  impose  upon  him  a  greater  burden  than 
preparing  a  bill  of  exceptions  or  statement."       Bistad  v.  Shanklin,  11  S.  D.  1. 

2.  It  muy  he  mnde  upon  a  hill  of  (Xeeptions  or  statement  of  the  case. 
By  this  means  a  statement  of  the  evidence  and  other  proceedings  had  upon 
the  trial,  bo  far  as  material  to  the  questions  raised  by  the  motion,  is  written 


Sec.  13]  New  Tkials  799 

The  notice  of  motion  was  as  follows : 

''Said  motion  will  be  made  and  based  upon  the  follow- 
ing grounds: 

"1.  That  the  findings  or  decision  of  the  court  is  against 
the  law  and  the  evidence. 

"2.  Errors  of  law  occurring  at  the  trial,  and  then  and 
there  duly  excepted  to  by  the  defendant,  to  wit  :  The  court 
erred  in  sustaining  plaintiff's  motion  to  strike  out  the  evi- 
dence of  Patrick  Talent,  the  defendant,  including  the  let- 
ters of  defendant  to  plaintiff,  and  plaintiff's  letters  to  de- 
fendant ;  the  court  erred  in  refusing  to  allow  defendant  to 
prove  that  he  was  the  trustee  of  the  property  mentioned  in 
the  deeds  from  Adam  Rutherford  to  defendant  and  from 
defendant  to  plaintiff,  and  that  the  plaintiff  was  the  sole 
beneficiary  of  said  property.  Said  motion  will  be  made 
and  based  upon  the  minutes  of  the  court,  the  statement  of 
the  case,  and  bill  of  exceptions." 

There  was  a  statement  of  the  case,  and  it  was  stipulated 
by  the  attorneys  of  the  respective  parties  that  the  state- 
ment might  be  used  on  the  motion  for  a  new  trial. 

If  this  notice  was  defective  in  not  making  known  whether 
the  motion  for  a  new  trial  would  be  made  upon  affidavits, 
minutes  of  the  court,  bill  of  exceptions,  or  statement  of  the 
'Case,  as  required  by  the  statute,  this  stipulation  that  the 
statement  of  the  case  might  be  used  on  the  hearing  of  such 
motion  would  cure  the  defect. 

The  office  of  the  notice  is  to  inform  the  adverse  party  of 
the  grounds  of  the  motion,  and  the  errors  relied  on  for  ob- 
taining a  new  trial.  The  notice  in  question  performs  that 
office.  It  sufficiently  designates  the  errors  complained 
of,  and  the  adverse  party,  by  his  own  agreement,  has  stip- 
ulated that  the  statement  of  the  case  might  be  used  upon 
the  consideration  of  the  questions  raised  by  the  motion  for 
a  new  trial.  He  is  not,  therefore,  in  a  situation  to  com- 
plain that  the  notice  does  not  give  him  all  the  information 
that  the  law  provides  that  he  shall  have. 

out  at  larpe,  ami  Fettled  as  correct  by  the  attorneyp  or  the  court,  and  there- 
upon such  statement  becomes  the  exclusive  source  of  information  as  to  Tvhat 
took  place  upon  the  trial,  and  the  sole  foundation  for  the  motion  so  far  as  it 
relates  to  the  trial  itself. 

3.  It  may  he  made  vpnn  affidavits.  This  method  is  to  be  employed  when 
matters  outside  the  proceedingrs  at  the  trial  are  to  be  brought  to  the  atten- 
ion  of  the  court  as  a  basis  for  the  relief  asked.  It  is  commonly  used  in  cou- 
paction  with,  and  supplementary  to,  the  other  two  methods. 


800  Trial  Practice  [Chap.  17 

If  the  notice  designates  the  grounds  npon  which  tlie  mo- 
tion for  a  new  trial  can  be  based,  it  is  not  necessary  to 
make  a  formal,  written  motion,  repeating  the  errors  as- 
signed in  the  notice. 

A  motion  is  an  application  for  an  order.  If  this  notice 
is  what  the  law  requires,  and  has  been  duly  served  on  the 
adverse  party,  no  formal,  written  application,  in  addition 
to  the  notice,  is  necessary  in  order  to  bring  the  motion  for 
a  new  trial  to  a  hearing. 

The  notice  is  the  only  written  motion  required  by  the 
statute,  and  we  know  of  no  rule  of  court  requiring  such 
motion  to  be  in  writing. 

The  motion  to  dismiss  the  appeal  is  overruled. 


Section  14.      Affidavits. 

VOSE  V.  MAYO. 

United  States  Circuit  Court  for  the  District  of 
Maine.      1871. 

3  Clifford,  484. 

Clifford,  Circuit  Justice. 

Power  to  set  aside  a  verdict  before  judgment  and  grant 
a  new  trial  is  vested  in  the  circuit  courts  "in  cases  where 
there  has  been  a  trial  by  jury,  for  reasons  for  which  new 
trials  have  usually  been  granted  in  the  courts  of  law,"  and 
the  correct  mode  of  applying  to  the  court  for  the  exercise 
of  that  power  is  by  a  motion  for  new  trial,  which,  under  the 
rules  of  the  circuit  'COurt  in  this  circuit,  must  be  made  in 
writing,  and  must,  unless  the  time  is  enlarged  by  leave  of 
the  court,  be  filed  within  two  days  after  the  verdict.  Such 
a  motion  must  assign  the  reasons  for  the  application,  and 
when  the  motiou  is  grounded  on  facts  not  within  the  knowl- 
edge of  the  providing  justice,  and  not  appearing  in  his  min- 
utes, it  must  be  verified  by  affidavit,  unless  the  requirement 
is  waivod  by  the  opposite  party.  No  affidavit  of  merits, 
however,  is  required  wlicn  the  motion  is  properly  addressed 
to  the  minutes  of  the  presiding  justice,  as  wliere  the  mo- 
tion is  to  set  aside  the  verdict  for  error  of  ruling  in  admit- 


Sec.  14]  New  Trials  801 

ting  or  rejecting  evidence,  or  for  refusing  to  instruct  the 
jury  as  requested,  or  for  misdirection,  or  because  the  ver- 
dict is  against  law,  or  against  the  evidence  or  the  weight 
of  the  evidence,  as  the  theory  of  the  motion  in  all  sucli 
cases  is,  that  all  the  matters  of  fact  alleged  in  the  motion 
are  within  the  knowledge  of  the  presiding  justice,  or  that 
they  may  be  verified  by  reference  to  his  minutes  taken  at 
the  trial.  Where  the  motion  is  for  new  trial  on  account 
of  newly  discovered  evidence,  or  where  the  motion  is 
grounded  on  the  charge  that  tlie  oj^posite  party  or  the  jury 
jwere  guilty  of  misconduct  in  respe^ct  to  the  trial,  the  rule  is 
different,  as  the  motion  in  such  cases  presents  a  prelimi- 
nary question  whether  the  facts  and  circumstances  dis- 
closed are  such  as  to  make  it  the  duty  of  the  court  to  order 
notice  to  the  opposite  party,  and  to  direct  the  mode  in 
which  the  proofs  shall  be  taken,  and  in  all  such  'Cases  the 
motion  must  be  in  writing,  and  must,  unless  the  require- 
ment is  waived,  be  supported  bv  affidavit.  Johnson  v. 
Root  (Case  No.  7,  409);  Hill.  New  Trials,  393,  sec.  35; 
Macy  V.  De  Wolf  (Case  No.  8,  933). 


DEAPEE  V.  TAYLOE. 

Supreme  Court  of  Nebraska.      1899. 
58  Nebraska,  787. 

Sullivan,  J. 

********** 

Immediately  after  the  court  announced  its  findings  and 
rendered  its  decree  Draper  and  King,  each  for  himself, 
filed  a  motion  for  a  new  trial  based  in  part  on  a  claim  of 
newly-discovered  evidence.  Each  motion  was  supported 
by  the  affidavit  of  the  attorney  representing  the  parties 
and  was  in  substance  the  same  as  the  affidavit  previously 
filed  in  support  of  the  motion  to  re-open  the  'Cause.  Both 
motions  were  overruled,  and  Draper  assigns  this  action  of 
the  court  for  error.  His  contention  is  that  he  made  a 
showing  of  newly-discovered  evidence  which  ought  to  have 

T.  p.— 51" 


802  Trial  Peactice  '      [Chap.  17 

procured  for  him  a  new  trial  of  the  issue.  Without  de- 
ciding whether  there  was  a  sufficient  showing  of  diligence, 
and  without  discussing  the  character  of  the  new  evidence 
and  its  probable  influence  as  a  factor  in  another  trial,  we 
think  the  district  court  made  no  mistake  in  refusing  to  va- 
cate its  decree.  It^is  our  understanding  of  the  rule  that 
not  only  must  counsel_uot  have  kuown  of  the  evidence  upon 
which  the  application  is  based,  but  the  applicant  himself 
must  have  been  ignorant  of  its  existence.  To  be  sure  the 
affidavit  states  that  ''neither  defendants  nor  their  counsel, 
by  reason  of  the  nature  of  the  evidence,  *  *  *  were 
able  sooner  to  discover  said  evidence,"  and  "because 
knowledge  of  the  existence  thereof  could  be  but  very  in- 
definitely known  to  any  of  the  parties  to  the  action  except 
the  plaintiff."  No  affidavit  was  filed  by  Draper  or  King, 
and  how  their  attorney  could  know  that  they  were  ignorant 
of  the  facts  set  out  in  his  affidavit  is  something  we  are  not 
quite  able  to  comprehend.  At  best  his  statement  in  re- 
gard to  the  matter  is  the  merest  hearsay.  (14  Ency.  PI. 
&  Pr.  823;  Hilliard,  New  Trials  (2d  ed.)  499;  State  v.  Kel- 
lerman,  14  Kan.  135 ;  Broat  v.  Moor,  4:4:  Minn.  468 ;  State  v. 
Campbell,  115  Mo.  391.)  There  should  also  have  been  pre- 
sented in  support  of  the  motion  the  affidavit  of  the  new  wit- 
ness stilting  the  facts  to  which  he  would  testify,  or  there 
should  liave  been  a  satisfactory  reason  given  for  not  ob- 
.taining  such  affidavit.  {Hand  v.  Langland,  67  la.  185; 
Quinn  v.  State,  123  Ind.  59 ;  McLeod  v.  Shelly  Mfg.  Co., 
108  Ala.  81;  14  Ency.  PI.  &  Pr.  825). 


UA 


s  -  r      PHILLIPS  V.  ETIODE  ISLAND  COMPANY. 

JL    ^Q  Aij^/Vc       Supreme  Court  of  Rhode  Island.      1910. 
^  V\^\  32  Rhode  Island,  16. 

JOHNSOI^,  J. 

This  is  an  action  of  the  case,  brought  by  Samuel  Phil- 
lips against  The  Rhode  Island  Company,  to  recover  dam- 
ages for  personal  injuries  alleged  to  have  been  sustained 


Sec.  14]  New  Teials  803 

through  the  negligence  of  the  defendant  company  in  the 
operation  of  one  of  its  street  cars. 

On  April  21st,  1905,  the  plaintiff  was  driving  a  heavy 
wagon,  loaded  with  oats,  drawn  by  one  horse,  and  was  pro- 
ceeding in  an  easterly  direction  from  Promenade  street 
across  Canal  street  into  Steeple  street,  in  the  city  of  Provi- 
dence. Canal  street  running  north  and  south  intersects 
Steeple  street  running  east  and  west,  and  Promenade  street 
runs  into  Canal  street  nearly  opposite  Steeple  street.  The 
defendant  company  had  a  single  track  running  through 
Steeple  street  into  Canal  street,  which  track,  just  before 
reaching  the  intersection  with  Canal  street,  curved  in  a 
southerly  direction  towards  the  corner  of  Steeple  and 
Canal  streets  and  extended  across  Canal  street.  At  the 
time  in  question  the  plaintiff's  wagon,  going  in  an  easterly 
direction,  had  just  crossed  the  tracks  in  Canal  street — fif- 
teen or  twenty  feet  westerly  from  the  crosswalk  at  the  foot 
of  Steeple  street — in  order  to  proceed  easterly  on  the 
^,outherly  side  of  Steeple  street.  Near  the  crosswalk  on 
Steeple  street  his  wagon  came  in  contact  with  a  car  of  the 
defendant  company  which  came  down  Steeple  street  to- 
wards Canal  street,  and  the  plaintiff  was  thrown  to  the 
ground  and  sustained  the  injuries  complained  of.  The 
case  was  tried  in  the  Superior  Court  with  a  jury  on  th€ 
21st,  24th,  and  25th  days  of  January,  1910,  and  a  verdict 
was  rendered  for  the  plaintiff  in  the  sum  of  twenty-five 
hundred  dollars.  Thereupon  the  defendant  moved  for  a 
new  trial,  alleging  as  grounds  therefor: 

Fourth :  That  certain  members  of  the  jury  before  whom 
said  cause  was  tried  were  guilty  of  misconduct  in  this,  that 
during  the  progress  of  said  trial,  and  without  the  consent 
of  the  court,  without  the  knowledge  and  consent  of  the  at- 
torneys for  the  defendant,  did  take  an  unauthorized  view 
of  the  premises  where  the  accident  occurred,  concerning 
which  said  action  was  brought  and  prosecuted. 

Fifth :  That  certain  members  of  said  jury  during  the 
progress  of  said  trial  did  take  an  unauthorized  view  of  the 
premises  where  the  accident  occurred,  concerning  which 
said  action  was  brought  and  prosecuted,  without  the  knowl- 
edge and  consent  of  the  defendant,  and  under  such  circum- 


804  Trial  Practice  [Chap.  17 

stances  as  to  be  calculated  to  lead  a  jury  into  error  in  the 
determination  of  said  case. 

Certain  affidavits  were  filed  by  the  defendant  in  sup- 
port of  said  motion.  The  defendant's  motion  for  a  new 
trial  was  denied  by  the  justice  who  presided  at  the  trial, 
and  the  case  is  now  before  this  court  on  the  defendant's 
bill  of  exceptions. 

The  exceptions  pressed  by  the  defendant  are  to  the  de- 
nial of  its  motion  for  a  new  trial  upon  the  several  grounds 
stated  therein,  the  other  exceptions  stated  in  the  bill  being 
waived. 

From  an  examination  of  the  evidence,  which  was  con- 
flicting:, we  are  not  able  to  say  that  the  jury  was  not  jus- 
tified in  returning  a  verdict  for  the  plaintiff,  or  that  the 
damages  are  excessive. 

Upon  the  question  of  unauthorised  views  alleged  to  have 
been  taken  by  two  of  the  jurors,  the  affidavit  of  one  juror 
was  introduced  stating  that  in  coming  from  the  restaurant 
where  he  had  been  to  dinner,  he  paced  the  distance  from  the 
'•estaurant  to  the  corner  of  Canal  street,  and  measured  in 
liis  mind  the  distance  from  the  south  ^curbing  on  Steeple 
street  to  the  car  track  and  thought  it  was  not  enough  for  a 
car  and  team  to  pass.  An  affidavit  was  also  introduced 
stating  that  another  juror  had  told  the  affiant  that  he,  said 
jnror,  on  Monday,  January  24th,  went  alone  to  the  place 
of  the  accident,  to  see  how  near  his  eye  measurement  would 
come  to  that  stated  in  court;  that  he  walked  down  Steeple 
street,  on  the  south  side  of  the  street,  and  as  he  was  walk- 
ing along  he  thought  in  his  own  mind  that  the  distance 
from  Allen  &  Northup's  restaurant  to  the  corner  of  Canal 
street  was  about  what  was  stated  in  court ;  that  as  he  was 
walking  towards  the  corner  of  Canal  street  he  had  a  good 
view  of  the  space  from  Steeple  street  south  curbing  to  the 
car  track,  and  thought  in  his  own  mind  that  the  distance 
was  less  than  that  stated  in  court;  that  he  thought  it  would 
be  a  close  squeeze  for  a  car  and  team  to  pass  each  other 
when  tlie  car  was  on  the  curve;  that  he  thought  in  his  own 
mind  tiiat  if  the  car  was  on  the  straight  track  on  Steeple 
street  that  the  team  could  have  passed  all  right.  This 
juror,  by  his  affidavit  on  file,  denied  making  the  statements 
attributed  to  him  by  said  affiant,  and  stated  that  the  only 


Sec.  14]  New  Trials  805 

view  he  had  of  the  place  of  the  accident  was  when  the  jury 
took  a  view,  January  21,  1910. 

It  is  well  settled  in  this  State  that  the  affidavits  of  jury- 
men as  to  what  takes  place  in  the  juryroom  are  inadmis- 
sible to  impeach  their  verdict.  In  TticAer  v.  Town  Coun- 
cil of  South  Kingstoivn,  5  E.  I.  558,  560,  the  court,  speaking 
by  Ames,  C.  J.,  said:  ''The  affidavits  of  the  jury-men  as  to 
what  took  place  in  the  jury-room,  or  as  to  the  grounds  upon 
which  they  found  their  verdict,  and  which  were  read  de 
bene  at  the  hearing,. must  be  rejected;  a  rule  of  policy,  well 
settled  both  in  England  and  in  this  country,  excluding,  for 
the  security  of  verdicts,  this  mode  of  impeaching  them. ' ' 

The  general  rule  that  the  affidavits  of  jurors  as  to  their 
own  misconduct  during  the  trial  are  inadmissible  to  im- 
peach their  verdict  is,  we  think,  supported  by  the  great 
weight  of  authority  both  in  this  country  and  in  England. 
In  Owen  v.  Warhiirton,  4  Bos.  &  Pull.  326,  where  the  affi- 
davit of  a  jur^Tnan,  that  the  verdict  was  decided  by  lot, 
was  offered,  Mansfield,  Ch.  J.  (pp.  329-330),  said:  "We 
have  conversed  with  the  other  judges  upon  this  subject, 
and  we  are  all  of  the  opinion  that  the  affidavit  of  a  juryman 
cannot  be  received.  It  is  singular  that  almost  the  only 
evidence  of  which  the  case  admits  should  be  shut  out ;  but, 
considering  the  arts  which  might  be  used  if  a  contrary  rule 
were  to  prevail,  we  think  it  necessary  to  exclude  such  evi- 
dence. If  it  were  understood  to  be  the  law  that  a  jur^Tnan 
might  set  aside  a  verdict  by  such  evidence,  it  might  some- 
times happen  that  a  juryman,  being  a  friend  of  one  of  the 
parties,  and  not  being  able  to  bring  over  his  companions 
to  his  opinion,  might  propose  a  decision  by  lot,  with  a  view 
afterwards  to  set  aside  the  verdict  by  his  own  affidavit,  if 
the  decision  should  be  against  him."  In  State  v.  Free- 
man, 5  Conn.  348,  the  court,  by  Hosmer,  C.  J.  (p.  351), 
said:  "In  this  state,  it  has  been  the  practice  to  admit  such 
testimony;  but,  said  Ch.  J.  Swift  (1  Dig.  775.),  'In  Eng- 
land, and  in  the  courts  of  the  United  States,  jurors  are  not 
permitted  to  be  witnesses  respecting  the  misconduct  of  the 
jury;  for  it  is  a  great  misdemeanor;  and  this  is  most  un- 
questionably the  correct  principle;  for  otherwise,  a  juror, 
who  should  be  disposed  to  set  aside  a  verdict,  would  give 
information  to  the  party  for  that  purpose;  if  not  so  dis- 


806  Trial  Practice  [Chap.  17 

posed,  he  could  suppress  the  information ;  and,  in  that  way, 
any  of  the  jury  could  command  the  verdict. ' 

"The  question  before  us  regards  a  point  of  practice; 
and  as  this  cannot  have  any  consequences  antecedent  to 
this  case,  it  is  competent  for  the  court  to  decide,  un- 
shackled by  precedent,  and  change  the  rule,  if  justice  re- 
quires it."  *    *    * 

"If  the  question  depended  merely  on  equitable  grounds, 
as  relative  to  the  immediate  parties  to  the  suit,  the  testi- 
mony in  question,  perhaps,  ought  to  be  received.  But 
there  are  higher  considerations  to  be  resorted  to.  On  a 
principle  of  policy,  to  give  stability  to  the  verdicts  of 
jurors,  and  preserve  the  purity  of  trials  by  jury,  the  evi- 
dence ought  not  to  be  admitted.  The  reasons  assigned 
by  Sir  James  Mansfield,  in  Owen  v.  Warhurton  and  by  Ch. 
J.  Swift,  in  his  digest,  are  of  great  weight.  The  sanction- 
ing of  the  testimony  of  one  juror,  relative  to  the  misbe- 
haviour of  the  rest,  would  open  a  door  to  the  exercise  of 
the  most  pernicious  arts,  and  hold  before  the  friends  of  one 
of  the  parties,  the  most  dangerous  temptation.  By  this 
capacity  of  penetrating  into  the  secrets  of  the  jury-room, 
an  inquisition  over  the  jury,  inconsistent  with  sound  pol- 
icy, as  to  the  manner  of  their  conduct,  and  even  as  to  the 
grounds  and  reasons  of  their  opinions,  maght  ultimately  be 
established,  to  the  injury  and  dishonour  of  this  mode  of 
trial;  imperfect,  undoubtedly,  but  the  best  that  can  be  de- 
vised. And  under  the  guise  of  producing  equity,  there 
might  be  generated  iniquity,  in  the  conduct  of  the  jurors, 
more  to  be  depored  than  the  aberration  from  law,  which, 
undoubtedly,  sometimes  takes  place. 

"The  opinion  of  almost  the  whole  legal  world  is  adverse 
to  the  reception  of  the  testimony  in  question;  and,  in  my 
opinion,  on  invincible  foundations." 

In  the  cases  cited  supra,  the  affidavits  of  the  jurors  were 
offered  as  to  their  misconduct  in  the  juryroom.  Wliere 
the  affidavits  of  jurors  have  been  offered  as  to  their  mis- 
conduct outside  of  the  juryroom  to  impeach  their  verdict, 
the  same  rule  of  public  policy  has  generally  been  applied 
by  the  courts.  Thus  in  Chadbourn  v.  Franklin,  5  Gray 
312,  where  defendant  moved  for  a  new  trial,  and  in  sup- 
port of  the  motion  offered  one  of  the  jurors  as  a  witness  to 
show  that  on  the  Sunday  intervening,  while  the  trial  was 


Sec.  14]  New  Tkials  807 

i  ii  progress,  said  juror  went  to  the  place  where  the  collision 
Dccurred,  and  examined  it  for  the  purpose  of  informing 
himself  upon  the  subject-matter  of  the  trial,  and  the  judge 
below  ruled  that  the  juror  could  not  be  permitted  to  tes- 
tify, in  support  of  this  motion,  to  these  acts  tending  to 
show  his  own  misconduct,  and  the  defendant  excepted,  the 
court,  Shaw,  C.  J.  said:  ''The  modern  practice  has  been 
uniform,  not  to  entertain  a  motion  to  set  aside  a  verdict 
on  the  ground  of  error,  mistake,  irregularity  or  misconduct 
of  the  jury,  or  of  any  of  them,  on  the  testimony  of  one  or 
more  jurors;  and  it-  rests,  we  think,  on  sound  considera- 
tions of  public  policy."  In  Rowe  v.  Canney,  139  Mass. 
41,  42,  the  court,  by  Morton,  C.  J.  said:  ''The  same  consid- 
erations of  public  policy  protect  the  communications  of 
jurors  with  each  other,  whether  in  or  out  of  the  jury-room, 
during  the  pendency  of  the  case  on  hearing  before  them." 
See  also  Commonivealth  v.  White,  147  Mass.  76,  80. 

In  Saniiary  District  v.  Cullerton,  147  111.  385,  the  affi- 
davits of  three  of  the  jurors  were  offered  touching  tlie  con- 
duct of  others  of  the  jury,  and  the  bailiff  in  charge,  tending 
to  impeach  the  verdict.  It  was  complained  that  after  they 
had  finished  viewing  the  premises  some  of  the  jurors  drank 
intoxicating  liquor.  The  court,  p.  390,  said :  ' '  This  court, 
in  an  unbroken  line  of  decisions  from  the  case  of  Forrester 
V.  Guard,  Breese,  44,  is  committed  to  the  doctrine  that  the 
affidavits  of  jurors  can  not  be  received  for  the  purpose  of 
showing  cause  for  setting  aside  the  verdict.  There  may 
be  dicta  in  some  of  the  cases  intimating  a  contrary  rule, 
but  in  every  case  where  the  question  has  been  before  the 
court,  and  determined,  the  principle  has  been  adhered  to;" 
and  again,  p.  391:  "In  trials  in  the  courts  of  justice  not 
only  should  there  be  absolutely  nothing  improper  permit- 
ted, but,  to  the  end  that  respect  for  the  administration  of 
the  law  may  be  maintained,  the  very  appearance  of  evil 
should  be  avoided,  and  the  courts  are  clothed  with  ample 
power  to  punish,  appropriately,  the  misconduct  of  jurors, 
and  of  others  in  their  presence,  and  no  court  ought  to  hesi- 
tate to  impose  adequate  penalties  and  set  aside  verdicts 
where  there  has  been  conduct  by  which  the  jury  may  have 
been  improperly  influenced,  or  the  verdict  has  been  the  re- 
sult of  improper  conduct  on  the  part  of  jurors.  But  to 
permit  the  affidavits  of  jurors  to  be  heard,  showing  that 


80B  Teial  Peactice  [Chap.  17 

the  verdict  to  which  they,  on  tlieir  oaths,  consented,  was 
the  result  of  improper  influence  or  corrupt  practice,  4s 
condemned  by  the  clearest  principles  of  justice  and  public 
policy.'  But  few  verdicts  in  important  cases  would  be 
permitted  to  stand.  Litigants,  in  whose  favor  verdicts 
might  be  rendered,  would  be  placed  at  the  mercy  of  cor- 
rupt jurors.  Litigation  would  be  increased,  the  widest 
door  thrown  open  to  fraud  and  perjury,  and  the  adminis- 
tration of  the  law  brought  into  contempt. ' ' 

In  Eeldmaier  v.  Relior,  90  111.  App.  96,  the  court,  at  p.  98, 
said:     "Upon  motion  for  a  new  trial,  affidavits  were  pre- 
sented, stating  that  two  of  the  jurors  admitted  after  the 
trial,  that,  during  its  progress,  they  examined  a  stone- 
wagon  to  ascertain  whether  the  boy  could  have  been  rolled 
under  such  a  wagon  as  appellee's  testimony  tended  to  show 
he  had  been.      This  was  a  controverted  point.      The  wagon 
said  to  have  been  so  examined  was  not  that  by  which  the  in- 
jury was  inflicted.    It  is  claimed  that  by  reason  of  such  al- 
leged misconduct  of  the  jurors  the  verdict  should  have  been 
set  aside.    The  affidavits  purport  to  show  that  the  jurors  ex- 
pressed themselves   after  the  verdict,   as   satisfied,   from 
such   examination,    that  there   was   ample   room   for   the 
boy's  body  under  the  platform  of  such  a  wagon.       These 
affidavits  are  not  by  the  jurors  themselves,  but  by  the  de- 
fendant and  others.      It  is  settled  law  in  this  state  that  the 
affidavits  of  jurors  can  not  be  received  for  the  purpose  of 
showing  cause  for  setting  aside  a  verdict.      Sanitary  Dis- 
tract V.  Cullerton,  147  111.  385,  and  cases  there  cited.      If 
affidavits  of  jurors  themselves  can  not  be  so  received,  it 
is  apparent  that  affidavits  setting  forth  statements  made 
by  jurors  after  the  close  of  a  trial,  must  be  equally  inad- 
missible.     If  these  affidavits  could  be  considered  and  were 
to  be  accepted  as  stating  facts,  the  judgment  of  the  two 
jurors  in  question  would  appear  to  have  been  influenced 
by  incompetent  evidence  which  could  not  have  been  ad- 
mitted at  the  trial.      The  jury  are  required  to  rely  on  the 
evidence  introduced  in  court  and  are  not  permitted  to  ob- 
tain it  outside.       But  to  permit  the  introduction  of  affi- 
davits to  impeach  the  conduct  of  jurors  upon  hearsay  state- 
ments said  to  have  been  made  by  them,  or  even  upon  their 
own  affidavits,  after  their  connection  with  the  case  has  ter- 
minated and  they  have  been  discharged,  would  open  the 


Sec.  14]  New  Teials  801' 

door  to  endless  attacks  upon  verdicts,  invite  fraud,  and 
place  litigants  at  the  mercy  of  jurors  dissatisfied,  or  open 
to  corrupting  influences." 

In  Clark  v.  Famous  Shoe  Etc.  Co.,  16  Mo.  App.  463,  the 
court,  p.  467,  said:  ''We  have  also  examined  the  defend- 
ant's complaint  founded  on  the  alleged  misconduct  of  a 
juror.  That  misconduct  consisted,  as  the  record  shows, 
of  the  juror  going  to  the  building  where  the  accident  oc- 
curred, after  the  trial  began,  inspecting  it  and  making 
some  measurements,  for  the  purpose,  as  he  says,  of  verify- 
ing the  correctness  o'f  the  plats  offered  in  evidence,  and  of 
seeing  whether  the  place  was  dangerous.  The  general 
rule  undoubtedly  is  that  the  triers  of  the  fact  should  derive 
their  information  from  the  evidence  offered  on  the  trial  of 
the  cause  and  the  law  as  given  to  them  by  the  court.  They 
are  sworn  to  do  so  and  are  guilty  of  misconduct  if  they  vio- 
late their  oaths  in  that  regard.  If  the  misconduct  of  the 
juror  in  this  case  would  have  been  substantiated  by  any- 
thing beyond  his  own  testimony,  we  would  have  felt  at  lib- 
erty to  consider  it,  and  determine  whether  it  was  such  as  to 
deprives  the  plaintiffs  who  were  wholly  innocent  of  the  ben- 
efit of  their  verdict.  But  the  only  evidence  found  in  the 
record  of  the  alleged  misconduct  of  the  juror,  is  his  own 
testimony  given  in  court  upon  the  hearing  of  the  motion 
for  a  new  trial.  This  testimony  we  are  not  at  liberty  to 
consider,  nor  should  the  trial  court  have  considered  it,  be- 
cause under  the  rule  now  prevailing  in  this  state,  the  testi- 
mony of  a  juror  tending  to  impeach  his  verdict,  can  not  be 
received,  and  it  seems  to  make  no  difference  in  that  regard, 
whether  the  alleged  misconduct  took  place  in  or  out  of  the 

jury-room." 

********** 

In  Deacon  v.  Shreve,  22  N.  J.  L.  176,  the  court  said,  at 
page  182:  "The  principle  is  now  well  settled,  that  gener- 
ally the  affidavits  of  jurors  shall  not  be  received  as  to  what 
took  place  in  the  jury-room,  or  elsewhere,  to  show  misbe- 
haviour, or  on  the  delivery  of  the  verdict  to  show  mistake, 
for  the  purpose  of  correcting  or  destroying  the  verdict, 
though  it  seems  their  affidavits  are  admissible  for  the  pur- 
pose of  exculpation.  The  rule  stands  on  the  ground  of 
public  policy,  courts  being  unwilling  to  permit  a  dissatis- 


810  Trial  Practice  [Chap.  17 

fled  juror  by  such  means  to  destroy  a  verdict  to  which  he 
liad  given  a  public  assent." 

^  In  Doivner  v.  Baxter,  30  Vt.  467,  after  the  case  had  beer 
given  to  the  jury,  the  officer  in  charge  allowed  the  jury  t^ 
separate,  and  they  went  to  their  respective  boarding-houses 
for  dinner,  returning  thence  to  the  juryroom  and  resuming 
the  consideration  of  the  case.  The  affidavits  of  all  the 
jurors  were  read,  stating  that  after  they  were  impanelled 
to  try  the  cause  they  had  no  conversation  with  any  one 
touching  it,  except  among  themselves.  The  court,  p.  475, 
said:  ''An  objection  was  taken  to  the  competency  of  the 
affidavits  of  the  jurors  and  their  admissibility  raises  a 
legal  question  which  we  are  called  upon  to  decide.  We 
think  the  true  rule  is,  that  the  affidavits  of  jurors  may  be 
readto^^culpate  themselves'  and  sustain  their  verdict,  but 
not  tO-impeach  it.  In  this  case  they  were  offered  to  show 
that  the  jurors  had  no  conversation  with  others,  nor  heard 
any  in  relation  to  the  cause." 

In  Siemsen  v.  Oakland,  etc.,  Electric  R.  Co.,  134  Cal.  494, 
where  an  unauthorized  view  was  alleged,  the  court  said,  p. 
497;  ''However  the  rule  may  be  in  other  states,  it  is  set- 
tled in  this  beyond  controversy  that  a  juror  may  impeach 
his  own  verdict  upon  no  other  ground  than  that  designated 
by  the  code  (citing  cases).  It  is  sought  by  respondent, 
upon  this  motion,  to  make  a  distinction  between  the  mis- 
conduct of  a  juror  before  retiring,  and  the  misconduct  of  a 
juror  during  retirement ;  but  to  this  it  may  be  said,  in  the 
language  of  Boyce  v.  California  Stage  Co.,  25  Cal.  463:  'In 
conclusion,  upon  this  branch  of  the  case  we  may  add  that  a 
line  of  judicial  decisions  which  struggles  to  multiply  ex- 
ceptions to  a  plain  and  simple  rule  founded  on  considera- 
tions of  the  wisest  policy,  is  not  to  be  favored ;  on  the  con- 
trary, the  struggle  should  be  to  bring  every  case  within  the 
rule,  lest  the  rule  itself  become  shadowy,  and  in  time  wholly 
disappear  in  a  multitude  of  exceptions.'  "  See  also  Pick- 
ens V.  Boom  Co.,  58  W.  Va.  19;  29  Cyc.  982,  983,  and  cases 
cited:  Thompson  and  Merriam  on  Juries,  sec.  440  and 
cases  cited. 

In  some  States  affidavits  of  jurors  as  to  their  own  mis- 
conduct outside  the  juryroom  during  the  trial  are  ad- 
mitted to  impeach  their  verdict.  Pierce  v.  Brennan,  83 
Minn.  422;  Peppercorn  v.  Black  River  Falls,  89  Wis.  38; 


Sec.  14]  New  Tkials  811 

Roller  V.  Bachman,  5  Lea.  153.      In  Iowa  it  has  been  held 
that  affidavits  of  jurors  may  be  received,  for  the  purpose 
^{  avoiding  a  verdict,  to  show  any  matter  occurring  during 
he  trial,  or  in  the  juryroom,  which  does  not  essentially 
inhere  in  the  verdict  itself.      Wright  v.  I.  £  M.  Tel.  Co.,  20 
Iowa,  195.    This  was  a  case  of  misconduct  in  the  juryroom. 
This  rule  has  been  followed  in  Kansas, — Perry  v.  Bailey, 
12  Kan.  539.      We  are  not,  however,  convinced  by  the  rea- 
soning of  these  cases.       We  are  of  the  opinion  that  the 
affidavits  of  jurors  as  to  their  own  misconduct  in  or  out  of 
the  juryroom  during  the  trial  are  inadmissible  to  impeach 
tlieir  verdict.      The  objection  on  the  ground  of  public  pol- 
icy is  just  as  strong  in  the  one  case  as  in  the  other.      The 
affidavit   of   the   juror   in   this   case  was   inadmissible   as 
to  his  own  misconduct  in  taking  an  unauthorized  view,  to 
impeach  the  verdict,  and  therefore  can  not  be  considered. 
An  affidavit  to  the  declaration  of  a  juror  impeaching  the 
verdict,  besides  contravening  the  same  rule  of  policy,  is 
condemned  by  the   ordinary  rule   of  evidence,   excluding 
hearsay  testimony. 

The  defendant's  exceptions  are  overruled,  and  the  case 
is  remitted  to  the  Superior  Court  with  direction  to  enter 
judgment  upon  the  verdict. 


-^^ 


MATTOX  Y.  UNITED  STATES.  Jal) 

Supreme  Court  of  the  United  States.       1892. 
146  United  States,  140. 

This  was  an  indictment  charging  Clyde  Mattox  with  the 
murder  of  one  John  Mullen,  about  December  12,  1889,  in 
that  part  of  the  Indian  Territory  made  part  of  the  United 
States  judicial  district  of  Kansas  by  section  two  of  the  act 
of  Congress  of  January  6,  1883,  (22  Stat.  400,  c.  13,)  en- 
titled "An  act  to  provide  for  holding  a  term  of  the  Dis- 
trict Court  of  the  United  States  at  Wichita,  Kansas,  and 
for  other  purposes." 

Defendant  pleaded  not  guilty,  was  put  upon  his  trial, 
October  5,  1891,  and  on  the  eighth  of  that  month  was  found 


812  Trial  Peactice  [Chap.  17 

guilty  as  charged,  the  jury  having  retired  on  the  seventh 
to  consider  their  verdict.  Motions  for  a  new  trial  and  in 
arrest  of  judgment  were  severally  made  and  overruled,  and 
Mattox  sentenced  to  death.  This  writ  of  error  was  there- 
upon sued  out. 

In  support  of  his  motion  for  new  trial  the  defendant  of- 
fered the  affidavits  of  two  of  the  jurors  that  the  bailiff 
who  had  charge  of  the  jury  in  the  case  after  the  cause  had 
been  heard  and  submitted,  "and  while  they  were  deliberat- 
ing of  their  verdict,"  "in  the  presence  and  hearing  of  the 
jurors  or  a  part  of  them,  speaking  of  the  case,  said  'After 
you  fellows  get  through  with  this  case  it  will  be  tried  again 
down  there.  Thompson  has  poison  in  a  bottle  that  them 
fellows  tried  to  give  him.'  And  at  another  time,  in  the 
presence  and  hearing  of  said  jury  or  a  part  of  them,  refer- 
ring to  the  defendant,  Clyde  Mattox  said:  'This  is  the 
third  fellow  he  has  killed.'  "  The  affidavit  of  another 
juror  to  the  same  effect  in  respect  of  the  remark  of  the 
bailiff  as  to  Thompson  was  also  offered,  and  in  addition, 
the  affidavits  of  eight  of  the  jurors,  including  the  three  just 
mentioned,  "that  after  said  cause  had  been  submitted  to  the 
jury,  and  while  the  jury  were  deliberating  of  their  verdict, 
and  before  they  had  agreed  upon  a  verdict  in  the  case,  a 
certain  newspaper  printed  and  published  in  the  city  of 
Wichita,  Kansas,  known  as  The  Wichita  Daily  Eagle,  of 
the  date  of  Thursday  morning,  October  8,  1891,  was  in- 
troduced into  the  jury  room ;  that  said  paper  contained  a 
comment  upon  the  case  under  consideration  by  said  jury, 
and  that  said  comment  upon  said  case  so  under  considera- 
tion by  said  jury,  was  read  to  the  jury  in  their  presence  and 
hearing;  that  the  comment  so  read  to  said  jury  is  found 
upon  the  fifth  page  of  said  paper,  and  in  the  third  column 

of  said  page,  and  is  as  follows : 

********** 

Mr.  Chief  Justice  Fuller,  after  stating  the  case,  deliv- 
ered the  opinion  of  the  court. 

The  allowance  or  refusal  of  a  new  trial  rests  in  the  sound 
discretion  of  the  court  to  which  the  application  is  ad- 
dressed, and  the  result  cannot  be  made  the  subject  of  re- 
view by  writ  of  error,  Bciulerf^on  v.  Moore,  5  Cranch,  11; 
Newcomh  v.  Wood,  97  TJ.  S.  581 ;  but  in  the  case  at  bar  the 


Sec.  14]  New  Teials  813 

District  Court  excluded  the  affidavits,  and,  in  passing  upon 
the  motion,  did  not  exercise  any  discretion  in  respect  of 
the  matters  stated  therein.  Due  exception  was  taken  and 
the  question  of  admissibility  thereby  preserved. 

It  will  be  perceived  that  the  jurors  did  not  state  what 
influence,  if  any,  the  communication  of  the  bailiff  and  the 
reading  of  the  newspaper  had  upon  them  but  confined 
their  statements  to  what  was  said  by  the  one  and  read  from 
the  other. 

In  United  States  v.  Reid,  12  How.  361,  366,  affidavits  of 
two  jurors  were  offered  in  evidence  to  establish  the  read- 
ing of  a  newspaper  report  of  the  evidence  which  had  been 
given  in  the  case  under  trial,  but  both  deposed  that  it  had  no 
influence  on  their  verdict.  Mr,  Chief  Justice  Taney,  de- 
livering the  opinion  of  the  court,  said:  ''The  first  branch 
of  the  second  point  presents  the  question  whether  the  affi- 
davits of  jurors  impeaching  their  verdict  ought  to  be  re- 
ceived. It  would,  perhaps,  hardly  be  safe  to  lay  down  any 
general  rule  upon  this  subject.  Unquestionably  such  evi- 
dence ought  always  to  be  received  with  great  caution.  But 
cases  might  arise  in  which  it  would  be  impossible  to  re- 
fuse them  without  violating  the  plainest  principles  of  jus- 
tice. It  is,  however,  unnecessary  to  lay  down  any  rule  in 
this  case,  or  examine  the  decisions  referred  to  in  the  argu- 
ment. Because  we  are  of  opinion  that  the  facts  proved 
by  the  jurors,  if  proved  by  unquestioned  testimony,  would 
be  no  ground  for  a  new  trial.  There  was  nothing  in  the 
newspapers  calculated  to  influence  their  decision,  and  both 
of  them  swear  that  these  papers  had  not  the  slightest  in- 
fluence on  their  verdict."  The  opinion  thus  indicates  that 
public  policy  which  forbids  the  reception  of  the  affidavits, 
depositions  or  sworn  statements  of  jurors  to  impeach  their 
verdicts,  may  in  the  interest  of  justice  create  an  exception 
to  its  own  rule,  while,  at  the  same  time,  the  necessity  of 
great  caution  in  the  use  of  such  evidence  is  enforced. 

There  is,  however,  a  recognized  distinction  between  what 
may  and  what  may  not  be  established  by  the  testimony  of 
jurors  to  set  aside  a  verdict. 

This  distinction  is  thus  put  by  Mr.  Justice  Brewer, 
speaking  for  the  Supreme  Court  of  Kansas  in  Perry  v. 
Bailey,  12  Kans.  539,  545:  ''Public  policy  forbids  that  a 
matter  resting  in  the  personal  consciousness  of  one  juror 


814  Trial  Peacticb  [Chap.  17 

should  be  received  to  overthrow  the  verdict,  because  being 
personal  it  is  not  accessible  to  other  testimony;  it  gives 
to  the  secret  thought  of  one  the  power  to  disturb  the  ex- 
pressed conclusions  of  twelve;  its  tendency  is  to  produce 
bad  faith  on  the  part  of  a  minority,  to  induce  an  apparent 
acquiescence  with  the  purpose  of  subsequent  dissent;  to 
induce  tampering  with  individual  jurors  subsequent  to  the 
verdict.  But  as  to  overt  acts,  they  are  accessible  to  the 
knowledge  of  all  the  jurors ;  if  one  affirms  misconduct,  the 
remaining  eleven  can  deny;  one  cannot  disturb  the  action 
of  the  twelve;  it  is  useless  to  tamper  with  one,  for  the 
eleven  may  be  heard.  Under  this  view  of  the  law  the 
affidavits  were  properly  received.  They  tended  to  prove 
something  which  did  not  essentially  inhere  in  the  verdict, 
an  overt  act,  open  to  the  knowledge  of  all  the  jury,  and  not 
alone  within  the  personal  consciousness  of  one." 

The  subject  was  much  considered  by  Mr.  Justice  Gray, 
then  a  member  of  the  Supreme  Judicial  Court  of  Massa- 
chusetts, in  Woodward  v.  Leavitt,  107  Mass.  453,  where 
numerous  authorities  were  referred  to  and  applied,  and 
the  conclusions  announced,  "that  on  a  motion  for  a  new 
rial  on  the  ground  of  bias  on  the  part  of  one  of  the  jurors, 
'he  evidence  of  jurors  as  to  the  motives  and  influences 
which  affected  their  deliberations,  is  inadmissible  either 
to  impeach  or  to  support  the  verdict.  But  a  juryman  may 
testify  to  any  facts  bearing  upon  the  question  of  the  exist- 
ence of  any  extraneous  influence,  although  not  as  to  how 
far  that  influence  operated  upon  his  mind.  So  a  juryman 
may  testify  in  denial  or  explanation  of  acts  or  declarations 
outside  of  the  jury  room,  where  evidence  of  such  acts  has 
been  given  as  ground  for  a  new  trial."  See,  also,  Ritchie 
V.  Holhrook,  7  S.  &  R.  458;  Chews  v.  Driver,  1  Cox  (N.  J.), 
166;  Nelms  v.  Mississippi,  13  Sm.  &  Marsh.  500;  Hawkins 
V.  Netv  Orleans  Printing  Co.,  29  La.  Ann.  134,  140;  Whit- 
ney V.  Whitman,  5  Mass.  405 ;  Hix  v.  Drury,  5  Pick.  296. 

We  regard  the  rule  thus  laid  down  as  conformable  to 
right  reason  and  sustained  by  the  weight  of  authority. 
These  affidavits  were  within  the  rule,  and  being  material 
their  exclusion  constitutes  reversible  error.  A  brief  ex- 
amination will  demonstrate  their  materiality. 
********** 

The  judgment  is  reversed,  and  the  cause  remanded  to 


Sec.  14]  New  Trials  815 

the  District  Court  of  the  United  States  for  the  District  of 
Kansas,  with  a  direction  to  grant  a  new  trial. 


WOLFGRAM  V.  TOWN  OF  SCHOEPKE. 

Supreme  Court  of  Wisconsin,      1904. 

•123  Wisconsin,  19. 

Action  for  personal  injuries  from  a  hole  in  a  country 
highway,  left  by  the  town  authorities  in  original  construc- 
tion by  merely  covering  the  same  with  poles.  Special  ver- 
dict of  twenty  questions  returned  by  jury,  finding  all  ma- 
terial facts  in  favor  of  the  plaintiff  except  that  question 
No.  16,  ''Was  plaintiff  guilty  of  any  want  of  ordinary  care 
which  .contributed  to  injury  he  received?"  was  answered 
"Yes."  Plaintiff  produced  affidavits  of  all  twelve  jurors 
to  the  effect  that  all  the  jurors  agreed  that  plaintiff  was 
not  guilty  of  any  want  of  ordinary  care,  and  that  the  in- 
sertion of  the  answer  ''Yes"  instead  of  the  word  "No" 
was  a  mistake.  The  foreman,  agreeing  with  these  facts, 
states  that  he  intended  to  write  answer  to  the  sixteenth 
question  so  as  to  find  that  said  plaintiff  was  not  guilty  of 
any  want  of  ordinary  care  which  contributed  to  his  in- 
jury. Upon  these  affidavits  the  plaintiff  moved,  first,  that 
the  answer  "Yes"  to  the  sixteenth  question  be  stricken 
out,  and  the  answer  "No"  be  inserted  in  lieu  thereof,  and 
for  judgment  upon  the  verdict  as  so  amended,  basing  the 
request  also  on  the  contention  that  there  was  no  evidence 
to  sustain  the  affirmative  answer  to  that  question.  That 
mo+ion  was  denied,  from  which  denial  the  plaintiff  appeals. 

Thereupon  plaintiff  moved  on  minutes  and  said  affi- 
davits for  a  new  trial.  Defendant  moved  to  strike  out 
jurors'  affidavits.  The  court  entered  its  order  reciting 
that  the  motion  was  based  on  a  mistake  in  the  verdict  and 
on  the  lack  of  support  from  evidence,  whereby  it  denied  de- 
fendant's motion  to  strike  out  said  affidavits,  "excepting 
that  said  affidavits  be  received  and  considered  only  as  tend- 
ina-  to  show  that  there  was  a  mistrial  by  reason  of  a  mis- 
take by  the  jury  in  writing  the  answer  to  question  No.  16," 


816  Tbial  Peactice  [Ciiap.  17 

but  rejecting  said  affidavits  in  as  far  as  they  "tend,  gen- 
erally, to  impeach  or  contradict  said  special  verdict."  The 
court  entered  further  order  granting  plaintiff's  motion  to 
set  aside  the  verdict  and  awarding  a  new  trial,  no  costs  be- 
ing imposed  on  either  party.  From  that  order  the  de- 
fendant appeals. 
Dodge,  J.  *    *    * 


*    * 


It  is,  however,  probably  true  that  the  new  trial  was 
granted  because  the  court  was  convinced  by  the  jurors' 
affidavits  that  the  written  verdict  did  not  express  the  con- 
clusion of  the  jury,  and  that  the  peril  of  injustice  from  en- 
try of  judgment  for  defendant  was  so  great  that,  in  exer- 
cise of  the  discretion  vested  in  him,  a  new  trial  ought  to  be 
had.       This  view  presents  the  question  whether  the  affi- 
davits of  jurors  could  be  received  as  evidence  of  the  facts 
they  state.       The  general  rule  is  very  ancient,  and  often 
reiterated,  that  the  statements  of  the  jurors  will  not  be 
received  to  establish  their  own  misconduct  or  to  impeach 
their  verdict.       Edmister  v.  Garrison,  18  Wis.  594,  603. 
An  excellent  collection  and  analysis  of  decided  cases  will 
be  found  in  Woodivard  v.  Leavitt,  107  Mass.  453.      From 
this  it  appears  that  the  early  idea  was  that  of  secrecy  in 
their  deliberations,  and,  further,  the  impropriety  of  receiv- 
ing jurors'  statements  as  to  their  mental  processes,  wheth- 
er to  impeach  or  support  their  verdict.      This  rule,  in  its 
application,  has  been  subjected  to  much  of  refinement  and 
qualification  by  different  courts,  involving  conflict  of  dicta 
and  of  actual  decision  which  it  would  not  be  profitable  to 
review  in  detail  nor  possible  to  harmonize.       The  neces- 
sity of  some  limitation  to  the  general  rule  against  receiv- 
ing statements  of  the  jurors  is  declared  in  McBean  v.  State, 
83  Wis.  206,  209,  53  N.  W.  497.      In  some  cases  the  rule  is 
limited  to  things  which  transpire  in  the  jury  room  or  in 
court,  but  it  will  be  found  in  most  of  those  cases  also  lim- 
ited to  matters  involved  in  reaching  the  verdict.    This  lim- 
itation was  recognized  and  applied  in  Hempton  v.  State, 
111  Wis.  127,  145,  86  N.  W.  596;  Roman  v.  State,  41  Wis. 
312;  Schissler  v.  State,  122  Wis.  365,  99  N.  W.  593;  Pep- 
percorn V.  Black  River  Falls,  89  Wis.  38,  41,  61  N.  W.  79; 
Mattox  V.  V.  S.,  146  U.  S.  140, 13  Sup.  Ct.  50.  _  In  line  with 
the  same  idea  are  a  number  of  decisions  drawing  a  distin^c- 


Sec.  14]  New  Trials  817 

tion  between  the  proceedings  involved  in  reaching  and 
agreeing  upon  the  verdict  and  the  mere  act  of  expressing 
it,  either  orally  or  in  writing.  The  following  cases  recog 
nize  such  distinction,  and  hold  that  the  reasons  excludin.L' 
jurors'  testimon}^  as  to  their  conduct  in  the  former  stage 
do  not  exclude  their  evidence  as  to  what  really  was  the  ver- 
dict agreed  on  in  order  to  prove  that  it  has  not  been  cor- 
rectly expressed,  through  mistake  or  otherwise:  Cogan  v. 
Ebden,  1  Burrows,  383;  Roberts  v.  Hughes,  7  Mees.  &  W. 
399;  Little  v.  Larrahee,  2  Greenl.  37;  Weston  v.  Gilmore, 
63  Me.  493;  Peters  v.  Fogarty,  55  N.  J.  Law,  386,  26  Atl. 
855;  Jackson  v.  Dickenson,  15  Johns.  309;  Dalrymple  v. 
Williams,  63  N.  Y.  361;  Hodgkins  v.  Mead,  119  N.  Y.  166, 
23  N.  E.  559;  Capen  v.  Stoughton,  16  Gray,  364;  Pelzer 
Mfg.  Co.  V.  Hamburg-B.  F.  his.  Co.,  71  Fed.  830.  Several 
of  these  cases  were  cited  with  approval  of  this  very  dis- 
tinction in  McBean  v.  State,  snpra.  Against  their  doc- 
trine we  find  Polhemus  v.  Heiman,  50  Cal.  438 ;  Murphy  v. 
Murphy,  1  S.  Dak.  316,  47  N.  W.  142,  and  McKinley  v.  First 
Nat.  Ba7ik,  118  Ind.  375,  21  N.  E.  36.  Of  these,  the  first  two 
seem  to  be  controlled  by  local  statutes,  and  are  therefore 
not  persuasive.  The  Indiana  case,  however,  squarely  de- 
nies the  admissibility  of  jurors'  testimony  to  prove  that  the 
written  answer  to  a  special  question  was  the  reverse  of  the 
agreement  in  fact  reached.  This  view  is  based  on  the  rule 
that  jurors  cannot  "impeach  their  own  verdict."  But  is 
it  an  attempt  to  impeach  their  own  verdict?  That  de- 
pends on  the  sense  in  which  that  word  is  used.  Is  the 
written  paper  filed,  or  the  agreement  which  the  jury  reach, 
the  verdict?  We  think  the  latter  is  what  is  intended 
when  we  say  the  jurors  cannot  impeach  it.  The  former, 
like  most  records  or  writings,  is  but  the  expression  or  evi- 
dence of  some  mental  conception.  Hence  it  may  well  be 
said  that  a  showing  that  such  writing  is  not  correct  is  not 
impeachment  of  the  verdict  itself.  The  repudiation  of 
written  expressions,  when,  by  mistake,  they  fail  to  ex- 
press the  intention  or  mental  concept,  is  familiar  in  the 
law.  A  writing  is  not  a  contract  when  it  fails  to  express 
that  on  which  tlie  minds  of  the  parties  met,  and  courts 
freely  exercise  power  to  correct  mistakes  when  the  proof 
leaves  no  doubt  that  the  real  contract  was  something  else. 
That  which  derides  the  rights  of  parties  litigant  is  the 
T.  p.— 52 


818  Tkial  Practice  [Chap.  17 

unanimous  agreement  of  the  jurors.  Each  party  is  en- 
titled to  such  judgment  as  results  from  that  agreement. 
Any  other  is  presumptively  unjust,  and  any  rule  that  ne- 
cessitates it  is  unreasonable,  unless  supported  by  consid- 
erations of  public  policy,  or  of  such  danger  from  opening 
the  door  to  investigation  that  wrong  is  likely  to  be  done 
oftener  than  the  right  promoted.  We  are  persuaded  that 
the  reasons  which  should  exclude  a  juror  from  showing 
that  he  made  a  mistake  in  reaching  his  conclusion  (see 
Murdoch  v.  Sumner,  22  Pick.  156)  do  not  extend  to  a  show- 
ing that  the  words  used  in  conveying  it  to  the  court,  or 
enrolling  it  on  the  records,  by  mistake  of  the  person  uttering 
or  writing  them,  fail  to  express  the  conclusions  reached  by 
all  the  jurymen.  Of  course,  the  showing  of  the  latter  fact 
must  be  clear  beyond  peradventure ;  at  least  to  warrant  a 
change  in  the  written  verdict  and  final  judgment  thereon. 
If  the  slightest  doubt  lurks  in  the  mind  of  the  court,  he 
should  confine  relief  to  the  granting  of  a  new  trial,  which, 
of  course,  he  may  always  order  when  there  is  reasonable 
cause  to  believe  that  the  judgment  will  do  injustice.  Some 
courts  incline  to  the  view  that  a  new  trial  is  the  only  relief 
after  the  jury  have  separated.  Little  v.  Larrahee,  supra; 
Weston  V.  Gilmore,  63  Me.  493.  But  the  clear  weight  of 
authority  is  that,  upon  sufficiently  clear  showing  of  the 
mistake,  and  of  what  was  the  verdict  agreed  on  and  in- 
tended to  be  expressed,  the  court  may  substitute  a  true 
expression  for  the  incorrect  one,  and  enter  judgment  ac- 
cordingly. See  Cogan  v.  Ehden,  supra;  Peters  v,  Fogar- 
ty,  supra;  Dalrymple  v.  Williams,  supra;  Hodgkins  v. 
Mead,  supra;  Pelzer  Mfg.  Co.  v.  Eamhurg-B.  F.  Ins.  Co., 
supra. 

We  conclude,  therefore,  that  the  trial  court  properly  re- 
ceived and  considered  the  affidavits  of  the  jurors  in  this 
case ;  that  they  at  least  sufficed  to  satisfy  the  court  of  great 
danger  of  injustice  being  done  by  entry  of  judgment  in  ac- 
cordance with  the  written  verdict,  and  therefore  justified 
him  in  exercising  his  discretion  to  relieve  plaintiff  from 
the  predicament  in  which  he  stood  by  awarding  him  an- 
other trial.  Wliothor  such  affidavits  made  so  plain  a  case 
as  to  entitle  plaintiff  to  correction  of  the  verdict  and 
judgment  in  his  favor  is  a  question  not  open  to  plaintiff  on 
this  appeal.      Plaintiff  might  probably  have  raised  it  had 


Sec.  14]  New  Trials  819 

he  refrained  from  motion  for  new  trial  and  appealed  from 
a  judgment  in  defendant's  favor.  When,  however,  he 
made  the  latter  motion,  he  appealed  to  the  court's  discre- 
tion to  relieve  him  from  the  adverse  situation  which,  while 
lot  due  to  his  fault  or  mistake,  was  due  neither  to  any  mis- 
conduct of  the  jury  nor  error  of  the  court.  He  had  no 
absolute  right  to  such  relief,  but  merely  to  have  the  court 
exercise  a  judicial  discretion  whether  it  ought  to  be  ac- 
corded him.  The  situation  does  not  fall  within  any  of 
those  where  it  is  held  proper  to  grant  the  relief  without 
terms,  under  the  authorities  on  the  subject  above  cited. 
We  are  brought  to  the  conclusion,  therefore,  that  the  court 
committed  no  error  in  awarding  new  trial;  but,  whether  it 
was  granted  because  the  verdict,  as  filed,  was  against  the 
weight  of  evidence  or  was  impugned  by  the  affidavits  of  the 
jurors,  error  was  committed  in  failing  to  imj^ose  reasonable 
terms  as  a  condition.  What  those  terms  should  be  is  a 
subject  for  consideration  primarily  by  the  trial  court. 

B^  the  Court. — Plaintiff's  appeal  is  dismissed.  Upon 
defendant's  appeal  the  order  is  reversed,  and  cause  re- 
manded with  directions  to  embody  in  the  order  granting 
new  trial  the  payment  of  reasonable  terms  by  plaintiff  as 
a  condition. 


CHAPTER  XVIII. 
TRIAL  AND  FINDINGS  BY  THE  COURT. 

FOWLER  V.  TOWLE. 

Supreme  Judicial  Court  of  Neiv  Hampshire.      1870. 
49  New  Hampshire,  507. 

This  was  a  writ  of  error,  brought  by  Cyrus  Fowler  and 
others  against  Elias  Towle.  The  writ  of  error  is  dated 
October  1,  1869. 

The  original  action  was  replevin,  for  a  meeting-house 
bell,  in  favor  of  Towle,  against  Fowler  and  others.  The 
plea  was  non  cepit,  with  a  brief  statement,  giving  notice  of 
title  to  the  bell  in  the  defendants  and  others.  By  consent 
of  the  parties,  the  action  was  tried  by  the  court  at  Free- 
dom, after  the  adjournment  of  the  May  term,  1868.  Neither 
r»arty  requested  the  court  to  report  the  facts  found,  nor 
'he  conclusions  of  law  upon  them.  At  the  close  of  the 
'rial,  the  cause  was  reserved  for  consideration  upon  writ- 
ten arguments,  and  the  finding  of  the  court  was  subse- 
quently filed  in  the  clerk's  office.  The  finding,  after  giv- 
ing a  description  of  the  action,  concludes  as  follows : 

"The  case  was  well  tried,  and  the  evidence  and  law  were 
well  argued  by  the  respective  counsel  engaged,  in  writing. 
The  court,  after  a  mature  examination  and  consideration 
of  the  facts  and  evidence,  and  the  law  applicable  thereto, 
has  'Come  to  the  conclusion,  that  the  said  Elias  Towle  re- 
cover of  said  defendants  one  dollar,  for  his  alleged  dam- 
ages for  the  alleged  caption  and  detention  of  said  bell  men- 
tioned in  his  declaration;  and  also  that  plaintiff  be  re- 
stricted to  the  recovery  of  one  dollar  in  full  of  all  costs 
whatsoever  in  this  suit.  Gr.  W.  N.,  Jus.  &c. 

''The  finding  of  the  court  is  also  upon  the  further  limi- 
tation and  condition,  that  if  the  defendants  shall  under- 
take either  by  transfer  of  the  action  to  the  full  court  or 
otherwise,  to  delay  immediate  judgment  according  to  the 
aforesaid  finding  of  the  court,  then  the  plaintiff  by  way  of 

820 


Chap.  18]     Teial  and  Findings  by  the  Court  821 

penalty,  shall  be  allowed  to  recover  the  whole  amount  of 
his  legal  costs  from  the  beginning,  and  also  if  the  plaintiff 
shall  attempt  to  transfer  this  action  as  aforesaid  or  other- 
wise disturb  the  aforesaid  finding  of  the  court,  then,  in 
such  case,  the  court  orders  that,  by  way  of  penalty,  the 
aforesaid  finding  shall  be  wholly  reversed  and  annulled, 
and  that  the  said  defendants  recover  as  damages  against 
said  plaintiff  the  value  of  the  bell,  being  three  hundred  dol- 
lars, with  interest  from  the  5tli  day  of  July,  A.  D.  1867, 
and  full  costs  of  court. 

G.  W.  N.,  Jus.  &c. 
"The  action  on  the  docket  having  been  continued  nisi 
judgment  is  therefore  ordered  as  of  the  last  term  for  plain- 
tiff for  one  dollar  debt,  and  one  dollar  costs,  and  the  clerk 

will  enter  it  up  accordingly.  G.  W.  N.,  Jus.  &c." 

********** 

In  the  assignment  of  errors  in  this  case  the  plaintiffs  in 
error  pray  that  "the  judgments  aforesaid  may  be  reversed 
and  held  for  nothing,  and  that  they  may  be  restored  to  all 

things  they  have  lost  by  reason  thereof." 

********** 

The  defendant  in  error  moved  to  quash  the  writ  of  error 
upon  its  return  into  court,  and  the  parties  agreed  that 
"pleas  may  be  filed  and  argued  without  prejudice  to  de- 
fendant's motion  to  quash  in  the  same  brief  in  which  said 
motion  is  argued."  No  plea  has  been  furnished,  and  the 
defendant  in  error  relies  solely  upon  his  motion  to  quash. 

Sargent,  J.  The  first  ground  taken  by  defendant  in 
error,  on  his  motion  to  quash  is,  that  in  this  class  of  cases, 
error  does  not  lie.  That  the  proceeding  being  entirely 
by  force  of  special  statute,  is  not  a  proceeding  according 
to  the  course  of  the  common  law,  and  therefore  that  cer- 
tiorari should  have  been  the  form  of  proceeding  instead  of 
error. 

Wliat  are  the  statute  provisions  applicable  to  this  case? 
Sees.  1  and  2  of  chap.  189,  (lenl.  Stats.,  prescribe  the  juris- 
diction of  this  court  at  the  law  terms,  while  sec.  3  does  the 
same  at  the  trial  terms,  as  follows:  "At  the  trial  terms 
they  shall  take  cognizance  of  civil  actions  and  pleas,  real, 
personal  and  mixed,  according  to  the  course  of  the  com- 
mon law,"  etc.    Sec.  4  then  provides  that  "in  civil  actions 


822  Trial  Peactice  [Chap.  1^' 

the  court  shall  try  the  facts  in  controversy  and  assess  the 
damages,  if  the  parties  so  elect,  and  judgment  rendered  on 
such  trial  shall  be  conclusive  as  if  rendered  on  the  verdict 
of  a  jury;"  and  sec.  5  provides  that  "the  decision  of  the 
court  in  such  case,  shall  be  in  writing,  if  either  party  so 
requests,  stating  the  facts  found  and  the  conclusions  of 
law  upon  them,  which  shall  be  filed  and  recorded,  and 
either  party  may  except  to  any  ruling  or  decision  of  the 
court  in  matters  of  law  in  the  same  manner  and  with  like 
effect,  as  upon  a  trial  by  jury. ' ' 

Now  the  question  is,  whether  the  substitution  of  the 
court  for  the  jury,  to  settle  the  questions  of  facts,  by  agree- 
ment of  parties,  so  far  changes  the  nature  of  the  whole  pro- 
ceeding, that  it  is  no  longer  ''a  civil  action  or  plea"  prose- 
cuted "according  to  the  course  of  the  common  law?"  The 
writ  is  the  same;  the  service  the  same;  the  entry  in  the 
court  the  same;  the  defendant's  appearance  the  same;  the 
pleadings  the  same;  the  issue  joined  is  the  same;  and,  af- 
ter verdict,  the  judgment  must  be  the  same;  and  shall  have 
the  same  effect,  as  though  rendered  upon  a  verdict  of  the 
jury;  and  provision  is  made,  that  either  party  requesting 
it,  shall  have  the  decision  in  writing,  and  may  except  to  any 
ruling  or  decision  of  the  court  in  matters  of  law,  in  the 
same  manner,  and  with  the  same  effect,  as  upon  a  trial  by 
jury. 

When  all  these  facts  are  considered,  and  also  the  fact 
that  it  is  only  by  agreement  of  the  parties,  that  this  change 
can  be  made,  and  that  all  the  proceedings,  both  before  and 
after  trial,  are  to  be  the  same  in  both  cases,  we  are  satis- 
fied that  this  arrangement  of  the  parties  as  to  the  trier  of 
the  facts,  does  not  change  the  nature  of  the  proceeding  any 
more  than  it  does  the  form,  and  was  not  designed  to 
change  either. 

It  is  a  sufficient  answer  to  this  suggestion,  that  if  by 
this  agreement  of  the  parties,  and  this  trial  of  the  facts 
by  the  court  instead  of  a  jury,  the  proceeding  is  changed 
so  as  to  be  no  longer  a  "civil  action  or  plea  according  to 
the  course  of  the  common  law,"  then  the  court  at  the  trial 
term  would  no  longer  have  jurisdiction  of  the  case,  be- 
cause it  clearly  does  not  come  under  any  of  the  other  heads 
enumerated  in  sec.  3,  and  unless  it  continues  to  be  what  it 
was  when  it  was  commenced,  viz.,  a  civil  action  or  plea  ac- 


Chap.  18]       Trial  and  Findings  by  the  Court  823 

cording  to  the  course  of  the  common  law,  the  court  would 
cease  to  have  jurisdiction  of  the  same  at  the  trial  term,  be- 
cause it  is  only  as  such  an  action  or  plea,  that  the  court  at 
that  term  has  any  jurisdiction  of  the  case.  This  position 
of  the  defendant  in  error  is  not  well  taken. 

A  writ  of  error  would  be  the  proper  remedy  in  a  case 
tried  by  the  court,  under  sees.  4  and  5  in  all  cases,  where 
it  would  be  the  remedy  if  the  same  case  had  been  tried  by 
the  jury,  instead  of  the  court.  The  court  was  substituted 
for  the  jury  in  this  case,  to  try  the  facts,  by  express  agree- 
ment of  the  parties;  but  while  the  court  thus  settles  the 
questions  of  fact,  in  the  capacity  of  a  jury,  still  the  judge 
retains  all  his  powers  as  judge  in  questions  of  law,  and 
may  exercise  the  same  discretion  in  allowing  or  limiting 
costs,  that  he  might  before,  so  that  while  acting  as  a  jury, 
to  try  the  facts,  he  has  no  power  over  the  costs,  either 
to  allow  or  disallow,  or  limit,  yet  as  judge,  he  may  pass 
upon  the  question  of  costs. 

And  while  the  judge  who  thus  acts  in  the  double  capacity 
of  judge  and  jury  has,  and  may  exercise  all  the  powers 
both  of  the  judge  and  jury,  still  he  has  no  powers  in  addi- 
tion to  those  which  the  court  and  jury  have  in  any  ordin- 
ary case.  Having  premised  thus  much,  in  relation  to  the 
powers  and  duties  of  the  judge,  who  acts  as  judge  and 
jury  both,  in  the  trial  of  a  cause,  let  us  look  at  the  verdict 
in  this  case,  and  see  how  much  of  it  is  a  finding  upon  ques- 
tions of  fact,  and  what  part  of  it  is  simply  a  ruling  upon 
questions  of  law,  or  the  exercise  of  the  discretion  vested 
in  the  court. 

So  far,  as  the  limiting  of  the  original  plaintiff's  costs 
is  concerned,  that  was  a  matter  within  the  discretion  of 
the  court,  as  a  court,  and  had  nothing  to  do  with  the  find- 
ing of  the  facts,  and  no  exception  would  lie  to  the  ruling 
of  the  court,  upon  a  matter  like  this,  which  is  placed  by  law 
in  the  discretion  of  the  court,  and  it  seems  equally  well  set- 
tled, that  a  writ  of  error  will  not  lie  in  such  a  case. 
Rochester  v.  Roberts,  29  N.  H.  360,  368. 

To  this  part  of  the  verdict,  then,  there  could  be  no  ex- 
ception, and  there  was  no  error.  And  if  there  had  been 
error  in  this,  the  plaintiffs  in  review  being  the  original 
defendants,  would  liardly  insist  upon  having  that  cor- 
rected, and  being  compelled  to  pay  full  costs,  instead  of 


824  Trial  Peactice  [Chap.  18 

the  limited  amount  fixed  by  the  judge  who  tried  this  cause. 
That  is  not  one  of  the  errors  assigned  in  this  case. 

The  other  part  of  the  verdict  (omitting  now  the  condi- 
tional portions  of  it)  is  "that  said  Towle  recover  of  said 
Fowler  &  als.  one  dollar  as  damages  for  the  caption  and 
detention  of  said  bell  mentioned  in  his  declaration."  As 
there  was  no  request  to  state  in  writing  either  the  facts 
found,  or  the  conclusions  of  law  upn  the  facts  in  the  case, 
by  either  side,  we  think  this  finding  is  plain,  intelligible 
and  explicit  enough,  to  answer  the  requirements  of  the 
law. 

In  order  to  reach  that  conclusion,  the  facts  found  must 
have  been,  that  the  bell  in  question  belonged  to  Towle, 
and  as  he  had  taken  the  bell  into  his  possession  upon 
the  replevin  writ,  all  he  could  recover  would  be  the  dam- 
ages for  the  wrongful  taking  and  detention  of  it,  and 
that  is,  what  he  does  recover  by  this  verdict  and  judgment. 
This  is  such  a  finding  that  judgment  may  be  properly 

rendered  upon  it. 

********** 

Let  us  next  consider  the  remaining  or  conditional  por- 
tion of  the  verdict  in  this  case.  It  will  be  observed,  that  the 
finding  of  the  court  is  in  three  separate  and  distinct  parts ; 
the  first  and  third  relate  to  the  same  subject-matter;  the 
first,  the  finding  of  one  dollar  damages  and  the  limiting 
the  costs  to  one  dollar;  the  third,  ordering  a  judgment  on 
that  finding,  according  to  its  terms.  These,  too,  are  con- 
sistent with  each  other,  and  are  perfect  in  themselves,  and 
each  is  signed  separately,  and  neither  of  them  contains 
anything,  as  matter  of  fact,  which  the  presiding  judge 
might  not  properly  find,  acting  in  place  of  a  jury,  or  as 
matter  of  law,  which  the  same  judge  acting  as  court,  might 
not  properly  do  and  order. 

But  the  second  or  conditional  part  of  the  verdict  is  all 
inconsistent  with  the  other  findings,  it  is  all  conditional, 
not  upon  the  law  or  facts  of  the  case,  but  upon  the  future 
conduct  of  the  parties,  and  was  intended  to  be  held  over 
both  parties,  as  it  would  seem,  in  ierrorem,  in  order  to  in- 
duce them  to  abide  by  the  first  award,  and  submit  to  the 
judgment,  which  was  ordered  thereon.  This  portion  of 
the  verdict  is  entirely  separate  from  all  the  rest,  and  is 
signed  separately. 


Chap.  18]      Trial  and  Findings  by  the  Court  825 

Whence  did  the  presiding  judge,  who  tried  this  cause, 
derive  his  power  to  make  orders  as  to  the  future  conduct 
of  these  parties?  The  power  to  deprive  them  of  rights 
which  the  law  had  given  them,  the  power  to  punish  them 
for  resorting  to  those  remedies  which  the  law  has  pro- 
vided for  all  good  citizens  ?  He  could  not  derive  this  power 
from  the  agreement  of  the  parties,  because  this  agreement 
was  simply,  that  the  court  should  act  in  the  place  of  the 
jury  in  finding  the  facts  in  the  case,  and  gave  the  court  no 
additional  powers  as  a  court.  After  that  agreement,  the 
presiding  judge,  had  just  the  powers  he  had  before  as 
presiding  judge,  and  in  addition,  the  power  and  authority 
to  find  the  facts  in  the  case,  upon  legal  testimony,  and 
that  was  all. 

A  jury  may  mistake  their  province,  and  undertake  to 
find  something,  that  was  not  in  issue,  but  such  part  or 
parts  of  their  verdict  would  be  rejected  as  surplusage,  and 
only  such  part  as  was  confined  to  the  issue  raised  by  the 
pleadings,  could  stand  as  a  verdict.  Tucker  v.  Cochran, 
47  N.  H.  54.  So  far,  then,  as  he  acted  as  a  jury,  the  pre- 
siding judge,  had  no  authority  or  power  to  undertake  to 
regulate  the  future  conduct  of  these  parties,  and  so  far 
the  verdict  can  have  no  force  or  effect.  While  acting  as 
judge,  he  had  the  power  to  limit  costs,  in  his  discretion, 
and  to  order  judgment  upon  the  verdict  he  had  rendered, 
still  he  had  no  more  power  than  he  would  have  had  if 
the  jury  had  found  the  verdict  upon  the  evidence.  In  such 
case,  he  would  have  the  power  to  set  aside  the  verdict 
if  a  proper  case  was  made,  or  to  order  judgment  upon  it, 
or  to  continue  the  cause,  but  he  had  no  power  or  jurisdic- 
tion to  put  the  parties  under  bonds  for  good  behavior, 
without  the  proper  complaint  on  oath,  nor  had  he  the 
power  to  say  that  they  should  not  avail  themselves  of  all 
their  legal  rights  and  remedies,  after  the  judgment  which 
he  might  properly  render,  was  entered  up. 

As  a  part  of  the  verdict,  upon  the  facts,  this  portion 
would  be  merely  surplusage,  and  would  all  be  rejected, 
and  as  an  order  of  the  court,  or  a  part  of  the  judgment,  it 
was  extra-judicial,  was  without  authority,  and  without 
legal  effect,  a  mere  nullity,  not  voidable  merely  but  abso- 
lutely void. 

There  is  no  doubt,  therefore,  that  the  second  judgment 


826  Trial  Peactice  [Chap.  18 

';vould  be  reversed,  ll'  the  question  were  brought  before 
the  court  at  the  proper  time  and  in  the  proper  way.  But 
tlie  question  here  is,  whether  a  writ  of  error  is  the  proper 
way  to  bring  the  matter  before  the  court  at  this  time.  When 
this  case  was  brought  forward,  and  the  new  judgment  was 
rendered,  it  was  at  a  regular  term  of  the  court,  when 
counsel  were  present,  as  it  was  their  duty  to  be,  and  had 
every  opportunity  to  take  exceptions.  All  the  objections 
existed  then  that  exist  now,  and  if  the  proper  exceptions 
had  been  taken  to  the  rulings  and  orders  of  the  court  at 
that  time,  the  judgment  must  inevitably  have  been  reversed. 
No  reason  or  excuse  is  given  or  offered,  or  pretended  to 
exist,  why  objection  was  not  then  made,  and  exception 
taken.  *  *  * 

Under  these  circumstances,  the  plaintiff's  in  error,  hav- 
ing had  ample  opportunity  to  take  any  and  all  exceptions, 
seasonably,  and  have  them  considered  just  the  same  as 
upon  a  writ  of  error,  and  having  neglected  to  take  any  such 
exceptions  at  the  proper  time,  they  cannot  now  *  *  *  be 
heard  to  raise  exception  *  *  * 

We  find  no  ground,  therefore,  upon  which  this  writ  of 
error  can  be  sustained,  and  are  of  opinion  that  the  motion 
to  quash  the  writ  should  be  granted. 

Writ  quashed. 


UTAH  NATIONAL  BANK  OF  SALT  LAKE  CITY  V. 

NELSON. 

Supr^eme  Court  of  Utah.    1910. 

Utah, ;  111  Pacific,  907. 


Action  by  the  Utah  National  Bank  of  Salt  Lake  City, 
Utah,  against  Joseph  Nelson.  From  a  judgment  for  plain- 
tiff, defendant  appeals.    Affirmed. 

Plaintiff,  a  corporation  organized  and  existing  under 
the  laws  of  Congress,  brought  this  action  to  recover  from 
defendant  upon  a  promissory  note.  The  complaint  alleges, 
in  substance:  That  the  defendant,  on  January  22,  1908, 
at  Salt  Lake  City,  Utah,  for  value  received,  executed  and 


Chap.  18]      Trial  and  Findings  by  the  Court  827 

delivered  to  plaintiff  his  certain  promissory  note,  and 
thereby  promised,  on  30  days'  demand  after  date,  to  pay 
to  the  order  of  plaintiff  $13,250,  with  interest  at  6  per  cent, 
per  annum  from  date  until  paid,  and  to  pay  10  per  cent, 
additional  as  attorney's  fee  if  the  note  slionld  be  placed 
in  the  hands  of  an  attorney  for  collection;  that  payment 
of  the  note  was  demanded  September  11,  1908,  bnt  the  de- 
fendant refused  to  pay  the  same,  or  any  part  thereof;  that 
the  note  was  placed  in  the  hands  of  attorneys  for  collec- 
tion. The  answer,  admitted  each  alleia^ation  in  the  com- 
plaint, with  the  exception  that  it  denied  that  the  note  was 
G^iven  ''for  value  received."  The  answer  also  contained 
the  following  affirmative  allegation,  namely;  ''That  the 
nromissory  note  signed  by  the  defendant  and  delivered 
^y  him  to  the  plaintiff,  as  alleged  in  said  complaint,  was 
without  consideration,  and  that  no  consideration  what- 
"ver  passed  or  was  given  for  the  said  promissory  note; 

*  *  that  neither  the  plaintitf  nor  any  other  person  ever 
')aid  any  sum  of  money  or  any  other  thing,  or  ever  suffered 
->r  received  any  detriment  as  a  consideration  for  the  sign- 
■ns^  and  delivery  of  the  said  promissory  note;  and  that 
-^aid  note  was  whoTv  without  consideration."  The  case 
was  tried  to  the  court  without  a  jury.  *  *  * 

The  court,  among  other  things,  found,  so  far  as  material 
liere:  "That,  for  a  valuable  consideration  received  by  de- 
fendant, he  executed  and  delivered  his  promissory  note 
(the  note  in  question)  to  plaintiff;  *  *  *  that  all  of  the  alle- 
gations contained  in  plaintiff's  complaint  filed  herein  are 
true,  and  all  the  denials  and  allegations  of  said  defendant 
in  his  answer  are  untrue,  except  as  to  the  admissions  there- 
in contained."  As  a  conclusion  of  law  the  court  found 
that  plaintiff  was  entitled  to  judo-ment  against  defendant 
for  the  principal  of  the  note.  $13,250,  and  interest  thereon 
amounting  to  $1,104.1^,  and  for  attorney's  fee  amounting 
+0  $1,325,  and  rendered  judgment  in  favor  of  plaintiff  for 
the  sum  of  $15,679.16  and  costs  of  suit.  To  reverse  the 
iudgment  defendant  has  brought  the  case  to  this  court  on 
appeal. 

McCarty,  J.  (after  stating  the  facts  as  above).  Appel- 
lant, in  his  assignment  of  errors,  alleges  "that  the  court 
erred  in  that  it  failed  to  find  the  facts,  if  any  there  were, 
constituting,  or  which  could  constitute,  any  consideration 


S28  Trial  Peactice  [Cliap.  IS 

for  tlie  contract  or  promissory  note,"  and  insists  that  the 
finding  made  by  the  court,  namely,  "that  for  a  valuable 
consideration  received  by  said  defendant  he  (the  defend- 
ant) executed  the  promissory  note  mentioned,"  was  a 
mere  conclusion  of  law  and  not  a  finding  of  fact  at  all  *  *  * 

In  Spelling,  New  Tr.  &  App.  Pro.  <^  593,  the  author  says ; 
"If  an  issue  be  tendered  in  general  terms  and  met  by  a 
denial  in  the  same  form,  a  finding  in  the  same  general  form 
will  be  sufficient;  but,  where  the  pleadings  are  so  framed 
that  the  controversy  turns  upon  a  particular  fact,  the  find- 
ing should  conform  to  the  issue  thus  presented  and  be  speci- 
fic. Accordingly,  when  only  general  facts  are  averred,  and 
the  controversy  related  to  the  settlement  of  a  long  standing 
account  consisting  of  numerous  items,  it  was  held  that  a 
general  finding  of  a  balance  in  favor  of  plaintiff  was  suf- 
ficient"— citing  with  approval  the  case  of  Pratalongo  v. 
Larco,  47  Cal.  378.  The  action  in  that  case  was,  as  stated 
in  the  opinion,  "for  money  lent  and  advanced  and  paid, 
laid  out,  and  expended  by  the  plaintiff  to  and  for  the  use 
of  the  defendant  and  for  money  had  and  received  by  the 
defendant  for  the  use  of  the  plaintiff.  The  answer  is  a 
general  denial  and  a  counterclaim  in  which  the  defendant 
Livers  that  the  plaintiff  is  indebted  to  him  for  money  had 
and  received,  lent  and  advanced,  and  paid,  laid  out,  and  ex- 
pended." So  in  this  case  it  is  alleged  in  the  answer,  in 
general  terms,  that  the  note  in  question  "was  without  con- 
sideration, and  that  no  consideration  whatever  passed  or 
was  given  for  the  promissory  note."  The  general  find- 
ing that  the  note  was  executed  "for  a  valuable  considera- 
tion received  by  said  defendant"  negatives  the  affirmative 
allegation  of  the  answer  and  is  therefore  sufficient.  More- 
over, the  authorities  seem  to  hold  that  findings  are  sufficient 
when  the  facts  found  are  stated  in  the  same  way  as  they 
are  alleged  in  the  pleadings. 

In  Hayne  on  New  Trial,  sec.  243,  the  rule  is  stated  as 
follows:  "Facts  may  be  stated  in  the  findings  in  the  same 
way  they  are  stated  in  the  pleadings.  It  is  not  necessary 
that  the  findings  should  follow  the  precise  language  of 
the  pleadings;  but  the  only  purpose  of  findings  is  to  an- 
swer the  questions  put  by  the  pleadings,  and  it  seems  to 
be  tho  received  idea  that  it  is  sufficient  if  the  answers  are 
^-'•iven  in  the  same  language  as  the  question,  and  that  the 


Chap   18]       Trial  and  Findings  by  the  Couet  829 

two  njodes  of  statement  are  governed  by  the  same  general 
rules." 

In  8  Eney.  PI.  &  Pr.  939,  it  is  said:  ''It  is  not  necessary 
that  the  findings  should  be  in  the  exact  language  of  the 
pleadings  or  in  any  particular  form."  The  finding  com- 
plained of  in  this  case,  while  of  course  not  in  the  exact 
language  of  that  part  of  the  answer  in  which  want  of  con- 
sideration is  alleged,  nevertheless  is  directly  responsive 
thereto.  And,  furthermore,  the  doctrine  is  elementary  that 
the  findings  should,  be  a  statement  of  the  ultimate  facts 
in  controversy  and  not  of  the  evidentiary  matters  from 
which  the  ultimate  facts  are  to  be  deduced  or  found.  In 
8  Ency.  PL  &  Pr.  941,  it  is  said:  ''The  findings  of  the 
court  should  be  statements  of  the  ultimate  facts  only,  and 
not  probative  facts  *  *  *  The  findings  should  contain  a 
concise  statement  of  the  several  facts  found  by  the  court 
from  the  evidence  and  not  the  evidence  from  which  they 
are  found." 

Murphy  v.  Bennett,  68  Cal.  528,  9  Pac.  738,  was  an  action 
to  recover  damages  for  the  tearing  down  of  a  barn  and 
converting  the  materials  thereof.  It  was  alleged  in  the 
complaint  that  the  plaintiff  was  the  owner  of  the  barn 
at  the  time  of  the  alleged  conversion.  The  answer  denied 
the  ownership  of  the  plaintiff  and  set  up  two  affirmative 
defenses  in  justification  of  the  taking.  The  court  found 
that  the  plaintiff  was  not,  and  that  the  defendant  was,  the 
owner  of  the  building,  but  omitted  to  find  on  the  affirmative 
defenses.  It  was  contended  that  the  finding  was  a  con- 
clusion of  law.  On  appeal  the  Supreme  Court  held  that 
the  finding  on  the  issue  of  ownership  was  sufficient,  and 
that  the  failure  to  find  on  the  affirmative  defenses  did  not 
prejudice  the  plaintiff.  In  the  course  of  the  opinion  the 
court  said:  "Here  the  allegation  in  the  complaint  is  that 
the  plaintiff  'was  the  owner  of  a  certain  frame  building, 
situate,'  etc.  The  answer  denied  that  plaintiff  was  the 
owner  of  the  building.  "Wliether  plaintiff  did  own  the 
building  or  not  was  then  the  ultimate  fact  to  be  determined, 
and  upon  the  issue  thus  raised  the  court  found  against 
the  plaintiff.  We  think  it  clear  that  the  findings  referred 
to  are  findings  of  fact,  and  not  conclusions  of  law." 

In  the  case  of  Kahn  v.  Central  Smelting  Co.,  2  Utah,  371, 
it  is  said  in  the  syllabus:  "A  finding  'that  there  was  no 


830  Trial  Practice  [Chap.  1 

partnership  between  the  plaintiff  and  the  defendant,  is  not 
a  conclusion  of  law,  but  is  a  finding  of  fact."  And  in  the 
course  of  the  opinion  Mr.  Justice  Emerson,  speaking  for 
the  court,  says:  ''The  fact  that  there  was  a  partnership 
is  the  ultimate  fact  alleged  in  the  complaint.  There  are 
certain  facts  and  conditions  and  circumstances  set  out  in 
the  complaint  from  which  this  ultimate  fact  is  deduced; 
that  is,  there  is  in  the  complaint  much  detail  of  mere  evi- 
dentiary facts.  The  material  issue  of  fact  is,  however: 
Was  there  a  partnership?  And  the  finding  responds  to  this 
issue.  This  was  the  ultimate  fact  to  be  ascertained,  and 
it  is  none  the  less  a  finding  of  fact  because  drawn  as  a 
conclusion  from  other  facts."  This  case  is  cited  with 
approval  and  the  doctrine  therein  announced  reaffirmed 
by  this  court  in  the  case  of  Snyder  v.  Emerson,  Auditor, 
19  Utah,  319,  57  Pac.  300,  wherein  it  is  held  that  ''the  find- 
ing that  W.  F.  Critchlow  was  duly  appointed  as  night  jailer 
is  not  a  conclusion  of  law,  but  a  finding  of  an  ultimate 
fact  which  was  an  issue." 

As  a  test  for  determining  whether  the  finding  in  ques- 
tion is  a  conclusion  of  law  or  a  finding  of  an  ultimate  fact, 
let  us  suppose,  for  example,  that  the  court  had,  in  the 
language  of  the  defendant's  answer,  found  "that  the  prom- 
issory note  signed  by  defendant  and  delivered  by  him  to 
the  plaintiff,  as  alleged  in  said  complaint,  was  without 
consideration,  and  that  no  consideration  whatever  ever 
passed  or  was  given  for  the  said  promissory  note."  Could 
such  a  finding  be  successfully  assailed  on  the  ground  that 
it  is  a  conclusion  of  law  and  not  a  statement  of  an  ultimate 
fact?  Certainly  not,  because  it  is  the  only  finding  that 
the  court  could  have  made  had  it  found  on  this  issue  in 
favor  of  the  defendant,  and  that,  too,  notwithstanding  this 
issue  was  presented  by  the  affirmative  allegations  of  de- 
fendant's answer  and  the  burden  was  upon  him  to  prove 
that  the  note  was  executed  without  consideration.  Now, 
if  a  finding  that  the  note  was  executed  without  considera- 
tion would  be  a  sufficient  finding  to  support  a  judgment  in 
favor  of  defendant,  it  necessarily  follows  that  a  finding 
that  the  note  was  made  and  delivered  "for  a  valuable  con- 
sideration" is  a  sufficient  finding  to  support  a  judgment  for 
])laintiff.  We  are  clearly  of  the  opinion  that  tlie  finding 
made  by  the  court  is  a  finding  of  an  ultimate  fact,  and, 


Chap.  18]      Trial  and  Findings  by  the  Court  831 

as  we  have  stated,  it  is  directly  responsive  to  the  affirma- 
tive allegations  contained  in  the  defendant's  answer. 

********** 

Judgment  affirmed,  with  costs  to  respondent. 


DARLING  V.  MILES. 

Supreme  Court  of  Oregon.    1911. 
57  Oregon,  593. 

This  is  an  action  by  Thomas  Darling  against  S.  A.  Miles 
to  recover  damages  suffered  by  reason  of  the  fraudulent 
representation  made  by  defendant  in  the  sale  of  certain 
lots. 

The  complaint  alleges  that  on  "the  20th  day  of  July, 
1906,  the  defendant  herein  did,  with  intent  to  cheat  and 
defraud  the  plaintiff,  falsely  and  fraudulently  represent  to 
the  plaintiff  that  he  was  the  absolute  owner  in  fee,  free 
from  incumbrance,  of  lots  six  (6)  and  seven  (7)  in  block  five 
(5),  in  Pleasant  View  addition,  *  *  *  in  the  city  of  Portland, 
and  that  lot  six  (6)  was  46.9  feet  by  100  feet,  *  *  *  when 
in  truth  and  in  fact  the  defendant  at  that  time  was  not, 
and  well  knew  that  he  was  not,  the  owner  of  the  south 
fifteen  (15)  feet  of  said  lot  six  (6)  free  from  incumbrance, 
and  plaintiff  alleges  that  the  public  then  had  a  right  to 
use  the  said  15  feet  as  a  highway,  and  the  defendant  then 
knew  it;  that  plaintiff  herein  relied  upon  the  truth  of  the 
statement  of  the  defendant  and  believed  the  same,  and  on 
July  20,  1906,  he  did,  by  reason  of  such  reliance  and  belief, 
purchase  *  *  *  and  received  from  the  defendant  his  war- 
ranty deed,  wherein  and  whereby  the  grantors  certified 

that  the  said  premises  were  free  from  all  encumbrances 

*  *  *    )  > 

All  these  allegations  are  denied  by  the  answer,  except 
that  defendant  admits  the  execution  and  delivery  of  the 
deed,  with  covenants  and  warranty,  as  alleged  in  the  com- 
plaint. 

The  action' was  tried  by  the  court  without  a  jury.    At 


832  Trial  Practice  [Chap.  18 

the  close  of  the  testimony  the  court  made  the  following 
finding  of  facts: 

''The  court  finds  that  on  or  about  the  20th  day  of  July, 
1906,  the  plaintiff  purchased  from  the  defendant  lots  6  and 
7  in  block  5,  Pleasant  View  addition,  Multnomah  County, 
Oregon,  for  a  valuable  consideration,  and  received  from 
the  defendant  a  general  warranty  deed  therefor.  That 
the  south  15  feet  of  said  lot  6  is  subject  to  a  right  of  way 
of  the  public  to  use  the  same  for  a  highway,  and  said  sale 
was  made  without  any  fraud  on  the  part  of  the  defendant^f 
and  without  any  fraudulent  representations  in  regard 
thereto." 

Judgment  was  rendered  thereon  in  defendant's  favor, 
from  which  plaintiff  appeals. 

Reversed. 

Me.  Justice  Eakin  delivered  the  opinion  of  the  court. 

1.  Plaintiff  contends  that  the  findings  of  fact  do  not 
support  the  judgment,  and  to  this  we  agree.  Section  158, 
B.  &  C.  Comp.,  provides  that  when  an  action  is  tried  by 
the  court,  without  the  intervention  of  a  jury,  the  decision 
shall  state  the  facts  found,  and  such  decision  shall  be  en- 
tered in  the  journal,  and  judgment  entered  thereon  accord- 
ingly. The  finding  that  ''the  sale  was  made  without  *  *  * 
any  fraudulent  representations"  only  states  a  conclusion 
of  law.  To  justify  a  conclusion  to  that  effect  it  was  neces- 
sary for  the  court  to  find  whether  or  not  defendant  repre- 
sented that  he  was  the  owner  of  the  lot,  free  from  incum- 
brance, and  that  its  dimensions  were  as  stated,  with  knowl- 
edge on  defendant's  part  that  the  representations  were 
false  or  were  made  recklessly  as  of  his  own  knowledge, 
without  any  knowledge  of  their  truth;  and  if  the  court 
finds  that  the  representations  were  so  made  it  must  also 
find  whether  plaintiff  relied  thereon  to  his  injury :  Caivston 
V.  HUiTfiis,  29  Or.  331  (43  Pac.  656).  Finding  adverse  to 
plaintiff  on  at  least  one  of  these  matters  is  necessary  to 
support  the  conclusion  that  there  were  no  fraudulent  repre 
sentation,  or  to  support  a  judgment  to  that  effect. 

2.  This  court  has  held  in  many  cases  that  findings  of 
fact  must  be  made  on  all  material  issues  necessary  to  sup- 
port the  judgment.  See  Wright  v.  Ramp.  41  Or.  285  (68 
Pac.  731);  Henderson  v.  Reynolds,  57  Or.  186  (110  Pac. 
979),  and  cases  therein  cited. 


Cliap.  18]      Trial  and  Findings  by  the  Court  83.') 

3.  Counsel  for  defendant  urges  that  the  proof  fails 
to  establish  the  elements  of  fraudulent  representations  al- 
leged, but  the  case  is  not  before  us  upon  the  evidence.  The 
only  means  we  have  of  knowing  what  was  proved  is  from 
the  findings  of  fact  which  are  silent  as  to  the  elements 
urged  here. 

4.  It  is  said  in  Drainage  Dist.  No.  4  v.  Crow.  20  Or.  536 
(26  Pac.  846),  after  quoting  from  said  Section  158,  B.  &  C. 
Comp: 

"The  object  of  this  statute  was  to  enable  the  parties  to 
have  placed  upon  the  record  the  facts  upon  which  the  right 
litigated  depends  as  well  as  the  conclusion  of  law.  *  *  * 
The  facts  found  are  conclusive  upon  the  appellate  court, 
but  the  conclusions  of  law  are  reviewable  here  on  appeal." 

The  facts  found  must  justify  the  conclusions  of  law. 
Otherwise,  they  are  abstract  statements  and  not  con- 
clusions. 

The  judgment  is  reversed  and  remanded  for  a  new 
trial. 

Reversed. 
Me.  Chief  Justice  Moore  did  not  sit  in  this  case. 


SLAYTON  V.  FELT. 

Supreme  Court  of  Washington.    1905, 

40  Washington,  1. 

Crow,  J. — This  action  was  commenced  by  appellant, 
Charles  J.  Slayton,  against  respondent,  D.  W.  Felt,  to  re- 
cover a  broker's  commission  on  the  sale  of  real  estate  in 
the  city  of  Seattle.  Upon  the  trial  before  the  court  without 
a  jury,  appellant  presented  findings  of  fact  in  his  favor, 
which  the  court  declined  to  make.    Judgment  was  entered 

dismissing  the  action.  *  *  * 

********** 

(2)     Appellant  also  contends  that  the  trial  court  erred 
in  failing  to  make  findings  of  fact  and  conclusions  of  law, 
separately  stated,  or  at  all,  and  asks  that  the  judgment  be 
T.  p.— 53    - 


834  Trial  Practice  [Chap.  18 

reversed  by  reason  thereof.  Appellant  urges  that  under 
Bal.  Code,  Sec.  5029,  it  was  the  duty  of  the  trial  court  to 
make  findings  of  fact  and  conclusions  of  law,  separately 
stated.  Respondent  contends  that,  as  the  final  judgment 
was  one  of  dismissal,  findings  of  fact  were  unnecessary, 
citing,  Thome  v.  Joy,  15  Wash.  83,  45  Pac.  642,  and  Noijes 
V.  King  County,  18  Wash.  417,  51  Pac.  1052.  Both  of  said 
cases  were  actions  in  equity.  This  court  has  heretofore 
announced  the  rule  that  findings  of  fact  and  conclusions! 
of  law  are  not  necessary  in  equitable  actions,  but  we  are  not 
aware  of  any  such  announcement  being  made  as  to  actions 
at  law.  We  see  no  reason  why  findings  of  fact  and  con- 
clusions of  law  are  not  just  as  essential,  if  properly  re- 
quested, in  an  action  at  law  when  the  same  is  dismissed, 
as  where  an  affirmative  judgment  is  entered.  This  being 
an  action  at  law,  the  cases  cited  by  respondent  do  not  sus- 
tain his  contention.  The  question  then  arises  whether  the 
action  of  the  trial  court  in  failing  to  make  findings  of  fact 
and  conclusions  of  law  amounted  to  such  prejudicial  error 
as  would  entitle  appellant  to  a  reversal.  In  Wilson  v. 
Aberdeen,  25  Wash.  614,  66  Pac.  95,  this  court  said: 

"We  come  now  to  the  consideration  of  the  appellants' 
contention  that  the  judgment  must  be  reversed  because  of 
the  failure  of  the  trial  court  to  make  findings  of  fact  and 
conclusions  of  law.  Our  statute  provides  that  'upon  the 
trial  of  an  issue  of  fact  by  the  court,  its  decisions  shall  be 
given  in  writing  and  filed  with  the  clerk.  In  giving  the 
decision,  the  facts  found  and  the  conclusions  of  law  shall 
be  separately  stated.  Judgment  upon  the  decision  shall 
be  entered  accordingly.'  Bal.  Code  §  5029;  2  Hill's  Code, 
§  379.  This  provision  of  the  code  is  in  form  mandatory, 
and  this  court  has  several  times  held,  in  effect,  that  in 
actions  at  law  tried  by  the  court  without  a  jury,  findings 
of  fact  and  conclusions  of  law  are  necessary  to  support  the 
judgment.  See,  Bard  v.  Kleeh,  1  Wash.  370,  25  Pac.  467: 
Kilroy  v.  Mitchell,  2  Wash.  407,  26  Pac.  865 ;  King  County 
V.  Hill,  1  Wash.  404,  25  Pac.  451;  Sadler  v.  Niesz,  5  Wash. 
182,  31  Pac.  630.  1030;  Potivin  v.  Blasher,  9  Wash.  460,  37 
Pac.  712.  But  in  more  recent  cases  it  has  been  decided  ; 
that  a  judgment  will  not  be  reversed  on  appeal  for  want  of 
findings  of  fact  and  conclusions  of  law,  where  it  is  not 
made  to  appear  by  the  record  that  there  was  any  request 


Chap.  18]      Tkial  and  Findings  by  the  Couet  835 

for  such  findings  and  conclusions,  or  any  objection  raised  i 
upon  that  account.  Washington  Rock  Plaster  Co.  v.  John-  * 
yon,  10  Wash.  445,  39  Pac.  115;  Remington  v.  Price,  13 
\Vash.  76,  42  Pac.  527." 

It  is  true  that  appellant  did  request  the  trial  court  to 
make  findings  of  fact  in  favor  of  himself,  upon  the  issues 
raised  by  the  pleadings,  the  same  being  claimed  by  him 
to  be  warranted  by  the  evidence  admitted.  The  court,  not 
thinking  the  evidence  warranted  such  findings,  refused  to 
sign  the  same.  It  do«s  not  appear,  however,  that  appellant 
at  any  time  requested  the  court  to  make  such  findings  of 
fact  and  conclusions  of  law  as  it  might  determine  to  be 
proper  or  warranted  by  the  evidence.  We  think  this  re- 
(piest  should  have  been  made,  before  appellant  would  be 
entitled  to  base  a  successful  assignment  of  error  upon  the 
refusal  of  the  court  to  make  any  findings  whatever.  The 
findings  requested  by  appellant  are  shown  in  the  record, 
and  afford  him  an  opportunity,  of  which  he  has  availed 
himself,  to  assign  error  upon  the  refusal  of  the  trial  court 
to  make  the  same.  He  has  been  deprived  of  no  legal  or 
valuable  right  in  that  direction.  This  court  in  Bard  v. 
Kleeh,  1  Wash.  370,  25  Pac.  467,  27  Pac.  273,  construing 
said  Bal.  Code,  §  5029,  there  mentioned  as  §  246,  said: 

**As  we  regard  it,  §  246  is  for  the  protection  of  court 
and  parties.  To  the  court  it  gives  an  opportunity  to  place 
upon  record  its  view  of  the  facts  and  the  law  in  definite 
written  form,  sufficiently  at  large  that  there  may  be  no 
mistake.  To  parties  it  furnishes  the  means  of  having  their 
causes  reviewed,  in  many  instances,  without  great  ex- 
pense. ' ' 

The  only  privilege  of  which  the  appellant  has  been  de-    j 
prived,  if  any,  has  been  to  bring  an  appeal  to  this  court    [ 
without  a  statement  of  facts  based  upon  such  findings  as    I 
the  court  would  have  signed  if  requested,  but  which,  neces-    < 
sarily,  would  have  been  against  appellant  upon  the  issues   S 
joined.    Such  an  appeal  could  not  have  benefited  appellant   i , 
in  any  manner  whatever.    In  view  of  this  fact,  and,  also,    j; 
the  further  fact  that  appellant  failed  to  request  the  court    \ 
to  make  findings  in  accordance  with  its  view  of  the  evi-    1 
dence,  we  think  no  error  prejudicial  to  appellant  has  been   A 
committed.    In  an  action  at  law,  either  party  has  the  right   T 
to  request  a  .trial  court  to  make  such  findings  of  fact  as 


^36  Teial  Pkactice  [Chap.  IS 

:  it  may  deem  proper,  upon  all  the  issues  involved,  or  upon 
I  any  particular  issue,  which  such  party  may  deem  mater- 
I  ial  or  important,  and  such  findings  should  then  be  made. 
I  A  mere  request,  however,  to  make  certain  findings  in  favor 
"  of  such  party  only,  is  not  in  itself  sufficient.     Of  course, 
it  is  the  proper  and  correct  practice  for  a  party  to  request 
findings  in  his  own  favor,  to  which  he  may  think  himself 
entitled,  so  that  he  may  make  proper  exceptions  to  their 
refusal.     But  such  findings  in  his  favor  having  been  re- 
-fused and  excepted  to,  he  must,  if  he  desires  to  assign  error 
on  a  failure  to  make  any  findings  or  conclusions  whatever, 
also  request  the  court  to  make  such  findings  as  it  thinks 
the  evidence  warrants.    This  was  not  done  by  appellant  in 
this  action. 

We  find  no  prejudicial  error  in  the  record.  The  judgment 
is  affirmed. 

Mount,  C.  J.,  Eoot  and  Hadley,  JJ.,  concur. 
FuLLEKTON  and  DuNBAK,  JJ.,  concur  in  the  result. 


I 


GRAHAM  V.  STATE,  EX  REL.  BOARD  OF  COMMIS- 
L^^WdU     (P^l  SIGNERS. 

^jjJ^J^^^^"^^  Supreme  Court  of  Indiana.     1879. 

^         u.<  66  Indiana,  386. 

^.     ^^ 

WoRDEN,  C.  J. — This  was  an  action  by  the  appellee, 
against  the  appellant,  which  resulted  in  a  trial  by  the  court, 
and  a  finding  and  judgment  for  the  plaintiff,  for  the  sura 
of  two  thousand  dollars. 

The  action  was  brought  against  Graham,  as  a  surety  on 
tlie  official  bond  of  Rufus  Gale,  as  the  auditor  of  Jefferson 
county.  The  bond  was  in  the  usual  form  of  such  bonds,  but 
was  in  the  penalty  of  five  thousand  dollars.  Breaches  of 
the  bond  were  assigned,  alleging,  among  other  things,  that 
Gale,  during  his  term  of  office,  had,  as  such  auditor,  drawn 
numerous  warrants  or  orders  upon  the  county  treasury, 
payable  to  himself,  for  large  amounts,  and  had  presented 
them  to  the  treasurer  for  redemption,  who  had  paid  the 
amount  thereof  to  said  Gale  in  redemption  thereof;  that 


Chap.  18]      Teial  and  Findings  by  the  Court  837 

the  orders  were  drawn  without  any  order  of  the  board  of 

commissioners  of  the  county,  or  authority  of  law. 

*********  *^* 

The  defendant  filed  a  motion  for  a  venire  de  novo,  be- 
cause the  facts  were  not  sufificiently  found.  And  it  is  said 
in  the  brief  of  counsel  for  the  appellant,  that  ''The  failure 
of  the  court  to  find  one  way  or  the  other,  upon  the  facts, 
as  to  two  of  the  breaches  alleged  in  the  complaint,  leaves 
the  issues  as  to  those  breaches  untried,  just  as  the  verdict 
of  a  jury  on  one  paragraph  of  a  complaint  consisting  of 
several  paragraphs  leaves  the  issues  on  the  other  para- 
graphs untried,  and  in  such  a  case  a  venire  de  novo  is 
awarded." 

This  makes  it  necessary  to  consider  to  some  extent  the 
nature  and  office  of  a  special  verdict  or  finding. 

The  statute  provides  that  ''A  special  verdict  is  that  by 
which  the  jury  find  the  facts  only,  leaving  the  judgment 
thereon  to  the  court."  2  R.  S.  1876,  p.  171,  sec.  335.  The 
next  following  section  provides  that  ''the  court  shall,  at 
the  request  of  either  party,  direct  them"  (the  jury)  "to 
give  a  special  verdict  in  writing  upon  all  or  any  of  the 
issues."  , 

JBy  section  341,  2  E.  S.  1876,  p.  174,  it  is  provided  that 
upon  trials  of  questions  of  fact  by  the  court,  if  one  of  the 
parties  request  it,  "the  court  shall  first  state  the  facts  in 
writing,  and  then  the  conclusions  of  the  law  upon  them." 

There  is  no  difference  between  a  special  verdict  and  a 
special  finding  by  the  court,  except  that  the  special  ver- 
dict finds  the  facts  only,  and  the  court  afterward  pro- 
nounces, or  rather  applies  the  law  to  the  facts  found,  and 
renders  judgment  accordingly;  while,  in  a  special  finding, 
the  court  states  the  conclusions  of  law  upon  the  facts 
found,  so  that  the  parties  can  except  to  the  conclusions. 
Neither  a  special  verdict  nor  a  special  finding  can  do  more 
in  relation  to  facts  than  to  find  or  state  them.  But  what 
facts  are  to  be  thus  found  or  stated?  Clearly  tJiose  that 
are  proved  upon  the  trial,  and  none  other.  When  the 
speciaTvei-'dict  has  found  the  facts  proved  on  the  trial,  it 
has  performed  its  entire  office;  and  when  the  special  find- 
ing has  stated  the  facts  proved  on  the  trial,  it  has  per- 
formed its  entire  office,  so  far  as  the  facts  are  concerned. 


838  Trial  Practice  [Chap.  IS 

Of  course  the  facts  may  be  proved  by  circumstances  or 
otherwise,  as  in  any  other  mode  of  trial. 

But  suppose  there  are  issues  in  the  cause  concerning 

which  no  evidence  is  given.    There  is  nothing  in  such  case 

in  relation  to  those  issues  for  the  court  or  jur}^,  in  finding 

specially,  to  pass  upon.    No  fact  in  relation  to  them  has 

been  proved,  and,  hence,  no  fact  in  relation  to  them  is  to 

1^ ,         be  found  or  stated,  because,  as  we  have  seen^  the  special 

t<^^4«tverdict  or  finding  is  confined  to  the  facts  proved. 

*dC ^       In  the  case  sui:)posed,  it  would  seem  that,  in  rendering 

judgment,  the  issues  concerning  which  no  facts  are  found 

should  be  regarded  as  not  proved  by  the  party  on  whom  the 

burden  of  the  issue  or  issues  lies. 

The  judgment  below  is  affirmed,  with  costs. 


CITY  OF  OWNESBORO  V.  WEIR. 

Court  of  Appeals  of  Kentucky.    1893. 
95  Kentucky,  158. 

Judge  Hazelrigg  delivered  the  opinion  of  the  court. 

The  question  involved  in  this  appeal  is  the  liability  of 
the  appellant,  City  of  Owensboro,  for  the  fee  of  the  appel- 
lees— attorneys  at  law — for  services  rendered  by  them  at 
the  employment  of  the  mayor  of  the  appellant  acting  with- 
out the  authority  of  the  city  council. 

The  circumstances  of  the  employment  are  set  forth  in 
an  ''agreed  case"  and  in  the  record  in  which  the  services 

were  rendered. 

********** 

But,  say  the  appellees  with  earnestness,  there  was  no 
statement  by  the  court  of  its  conclusions  of  fact  found,  sep- 
arately from  its  conclusions  of  law. 

Section  332  of  the  Civil  Code  provides  that  ''upon  trials 
of  questions  of  fact  by  the  court,  it  shall  not  be  necessary 
for  the  court  to  state  its  findings,  except  generally  for  the 
plaintiff  or  defendant,  unless  one  of  the  parties  request  it, 
with  a  view  of  excepting  to  the  decision  of  the  court  upon 


Chap.  18]      Teial  and  Findings  by  the  Couet  830 

the  questions  of  law  involved  in  the  trial;  in  which  case, 
the  court  shall  state  in  writing  the  conclusions  of  fact 
found,  separately  from  the  conclusions  of  law." 

Now  upon  an  agreed  state  of  fact,  what  could  the  court 
do  in  the  way  of  stating  "in  writing  the  conclusions  of 
fact  found  separately  from  the  conclusions  of  law?" 
Simply  copy  or  re-state  the  agreed  state  of  fact!  Clearly 
the  court's  judgment  on  the  law  only  was  asked.  There 
was  no  trial  of  questions  of  fact.  The  case  of  Harris  v. 
Ray,  15  B.  M.  629,  cited  by  counsel,  simply  determined 
that  the  provisions'  of  the  Code  regulating  applications  for 
a  new  trial  applied  to  judgments  by  default.  It  has  no 
bearing  on  the  section  quoted. 


GAINES  &  COMPANY  V.  WHYTE  GROCERY         « 
COMPANY. 

Kansas  City  Court  of  Appeals.    1904. 

107  Missouri  Appeal,  507, 

Smith,  P.  J. — The  plaintiff  and  defendant  are  both  busi- 
ness corporations,  the  former  organized  under  the  statute 
of  this  State  and  the  latter  under  that  of  the  State  of  Ken- 
tucky. The  plaintiff  in  its  petition  alleged,  (1),  that  it  was 
and  is  the  owner  of  a  special  trade-mark  for  "Old  Crow" 
whiskey,  which  defendant  had  infringed  and  was  infring- 
ing; and  (2),  that  by  the  use  of  the  words  "Old  Crow" 
upon  bottles  containing  whiskey  other  than  the  genuine 
"Old  Crow"  whiskey  produced  by  plaintiff  which  it  offered 
to  the  trade,  defendant  thereby  carried  on  such  unfair 
trade  and  competition  as  entitled  plaintiff  to  the  injunctive 
process  of  the  court.  The  defendant's  answer,  in  addition 
to  a  general  denial,  interposed  the  defenses  of  laches  and 
the  statute  of  limitation.  There  was  a  trial  and  decree 
for  plaintiff  and  defendant  appealed. 

The  defendant's  final  contention  is,  that  the  trial  court 
erred  in  its  refusal  to  make  special  finding  of  the  facts 


840  Tkial  Practice  [Chap.  18 

and  conclusions  of  law  thereon.  The  statnte  (section  695) 
doubtless  applies  to  both  legal  and  equitable  actions,  but 
while  this  is  so,  we  do  not  think  the  failure  to  make  a 
special  finding  in  an  action  of  the  latter  kind  constitutes 
a  reversible  error,  because  the  supervisory  courts  are  au- 
thorized on  appeal  to  try  and  determine  such  actions  upon 
the  pleadings  and  evidence  de  novo.  The  findings  of  the 
trial  court,  if  any,  may  be  entirely  disregarded  by  the 
former  tribunal  and  such  findings  and  decree  entered 
therein  as  seems  to  it  to  be  meet  and  proper.  The  Legisla- 
ture did  not,  by  the  enactment  of  the  statute  already  re- 
j  ferred  to,  intend  to  abrogate  the  well  and  long-established 
practice  of  the  appellate  courts  in  supervising  the  findings 
of  trial  courts  in  equity  cases,  or  to  deprive  the  former  of 
the  jurisdiction  to  determine  for  themselves  the  correct- 
ness of  the  findings  of  the  latter.  Blount  v.  Spratt,  113 
Mo.  48 ;  McElroy  v.  Maxiuell,  101  Mo,  294 ;  Benne  v.  Schnec- 
ko,  100  Mo.  250.  If  the  supervisory  courts  are  not  bound 
by  the  findings  of  the  trial  courts,  or  their  conclusions  of 
law  in  equity  cases,  but  may  review  the  whole  evidence 
and  determine  for  themselves  what  the  findings  of  fact 
and  conclusions  of  law  should  be,  it  is  difficult  to  see  how 
a  party  could  be  prejudiced  by  the  failure  of  the  trial 
court  to  make  special  findings  of  fact,  in  such  cases. 

The  failure,  therefore,  of  the  court  in  the  present  case 
to  make  special  finding  of  facts  was  not  such  an  error  as 
requires  a  reversal  of  the  decree;  and  especially  so  since 
it  was,  as  we  think,  clearly  for  the  right  party  and  the 
only  one  that  could  have  been  given  in  the  cause. 

Accordingly,  our  conclusion  is  that  the  decree  should  be 
affirmed.    All  concur. 


Chap.  18]      Tkial  and  Findings  by  the  Couet  841 


CITY  OF  BUFFALO  V.  DELAWAKE,  LACKAWANNA 
&  WESTERN  RAILROAD  COMPANY. 

Court  of  Appeals  of  New  York.    1907, 
190  New  York,  84. 

The  object  of  this  action  was  to  secure  a  judicial  determ- 
ination that  a  portion  of  the  river  front  in  the  city  of 
Buffalo  is  a  public  street  and  to  compel  the  defendant  to 
remove  certain  obstructions  therefrom.  The  main  issue 
raised  by  the  answer  was  whether  the  locus  in  quo,  called 
Front  street,  was  a  public  street  when  the  action  was  com- 
menced. *  *  * 

The  trial  justice  found  the  following  facts,  among 
others:  *  *  * 

"Eighteenth.  That  said  dock  and  wharf  from  the  time 
of  its  erection  down  to  the  commencement  of  this  action, 
and  since,  has  been  open  to  travel  by  vehicles  and  pedes- 
trians, except  when  such  travel  was  temporarily  obstructed 
by  freight  stored  upon  said  dock  or  wharf,  and  the  said 
dock  or  wharf  has  been  used  during  the  said  times  by 
vehicles  and  pedestrians,  more  largely  by  the  latter  than 
the  former;  that  the  greater  number  of  persons  using  said 
dock  or  wharf  for  foot  or  vehicle  traffic  did  so  for  the, 
purpose  of  reaching  the  stores  and  warehouses  abutting 
on  said  wharf,  and  for  the  purpose  of  delivering  supplies 
to  the  vessels  lying  thereat,  or  receiving  passengers  from 
such  vessels,  or  transacting  other  business  with  said 
vessels.  But  it  is  equally  true  that  many  of  the  people 
using  said  dock  and  wharf,  both  for  foot  and  vehicle  traf- 
fic, used  the  same  as  a  way  of  communication  between 
Main  street  and  points  east  of  Washington  street,  and 
that  many  pedestrains  constantly  used  said  dock  and  wharf 
who  had  no  business  with  the  abutting  stores  and  ware- 
houses, or  the  vessels  lying  at  said  dock." 

After  finding  the  facts  as  thus  stated  the  trial  court 
found  the  following,  which  were  designated  as  ''conclusions 
of  law:" 

"Third:  That  for  a  period  of  six  years  and  more  prior 
to  the  commencement  of  this  action  the  said  premises 


842  Tkial  Peacticb  [Cliap.  18 

herein  designated  as  'Front  street,'  ceased  to  be  traveled 
or  used  as  a  public  highway,  and  ceased  to  be  a  highway 

for  any  purpose. 

********** 

Vann,  J.  The  trial  court  rendered  judgment  against 
the  plaintiff  on  the  theory  that,  although  Front  street  be- 
came a  public  highway  as  early  as  1826  through  tender  of 
dedication  by  the  owners  and  acceptance  by  the  municipal 
authorities,  still  it  had  ceased  to  be  a  public  highway  be- 
cause it  had  not  been  traveled  or  used  as  such  for  a  per- 
iod of  more  than  six  years  prior  to  the  commencement  of 
the  action.  While  facts  were  found  which  sustain  the  con- 
clusion of  law  that  Front  street  became  a  public  highway 
through  offer  and  acceptance,  no  finding  of  fact,  classified 
as  such,  was  made  that  the  street  had  not  been  traveled 
or  used  as  a  public  highway  for  the  statutory  period  re- 
quired to  effect  an  abandonment.  {City  of  CoJioes  v.  Dela- 
ware (&  Hudson  Canal  Co.,  134  N.  Y.  397 ;  Matter  of  Hunter, 
163  N.  Y.  542,  548;  L.  1861,  ch.  311;  L.  1890,  ch.  568,  §  99.) 

It  is  claimed  that  the  third  conclusion  of  law  contains 
the  finding  of  fact  needed  to  support  the  judgment  and 
that,  although  it  is  classified  as  a  conclusion  of  law,  since 
it  is  really  a  finding  of  fact  the  same  effect  should  be  given 
to  it  as  if  it  had  been  so  designated  in  the  decision. 

The  finding  in  question  is  one  of  fact  or  law.  If  it  is 
the  latter,  the  facts  found  do  not  support  the  judgment, 
because  a  street  once  in  existence  is  presumed  to  continue 
until  it  ceases  to  be  such  owing  to  abandonment  or  some 
other  lawful  cause.  {Cohoes  Case,  supra.)  We  think, 
however,  that  the  finding,  except  the  last  clause  thereof,  is 
not  one  of  law  but  of  fact.  The  cessation  of  user  and 
travel  upon  a  street  for  the  period  prescribed  involves 
a  question  of  fact.  Traveling  upon  a  street  is  an  act  or  a 
series  of  acts  which  can  be  seen  and  described.  The  use 
of  a  street  for  traveling  purposes  requires  that  something 
should  be  done  thereon  which  is  apparent  to  ordinary  ob- 
servation. One  may  travel  on  a  street  by  walking,  riding 
or  driving.  Each  method  involves  action  and  an  act  is  a 
fact,  as  that  word  is  known  to  jurisprudence. 

An  error  in  the  classification  of  findings  by  the  trial 
court  does  not  prevent  an  appellate  court  from  classifying 
them  for  itself  in  accordance  with  their  actual  character. 


Chap.  18]      Tbial  and  Findings  by  the  Coult  84.S 

Giving  a  wrong  name  to  a  finding  does  not  change  its  na- 
ture and  if  it  is  placed  under  the  head  of  ''conclusions  of 
law,"  when  it  is  a  finding  of  fact,  it  will  be  treated  on 
appeal  as  what  it  really  is,  at  least  for  the  purpose  of  up- 
holding a  judgment.  {Berger  v.  Varrelmann,  127  N.  Y.  281, 
288;  Christopher  &  Tenth  Street  R.  R.  Co.  v.  Tiventy -third 
Street  R.  R.  Co.,  149  N.  Y.  51,  57.)  As  we  have  already 
seen,  the  judgment  appealed  from  cannot  stand  unless  the 
finding  under  consideration  is  a  finding  of  fact,  and  it 
now  remains  to  be  seen  whether  it  can  stand  even  on  that 
theory,  since  it  is  claimed  that  such  finding  of  fact  is  in- 
consistent with  other  findings  of  fact,  and  hence  must 
yield  thereto  at  the  election  of  the  appellant  in  aid  of  his 
exceptions.  It  was  upon  this  ground  that  one  of  the 
learned  justices  below  based  his  dissent. 

What  is  the  situation  according  to  the  findings  when 
properly  classified?  About  1826  a  public  highway  existed 
on  the  river  front  between  Washington  and  Main  streets. 
It  still  existed  in  1838,  when  a  dock  was  built  by  the  abut- 
ting owners  over  and  upon  the  land  owned  by  them  consti- 
tuting said  highway,  covering  it  for  its  entire  width  and 
length.  From  that  time  to  this  the  abutting  owners  have 
used  the  dock  for  dock  purposes  and  the  general  public 
have  used  it  for  highway  purposes,  neither  use  excluding 
the  other  altogether,  although  doubtless  interfering  with  it 
to  some  extent.  Under  these  circumstances  what  became 
of  the  street  when  the  dock  was  built?  Can  abutting  own- 
ers destroy  a  street  in  this  way?  Did  the  construction  of 
the  dock  annihilate  the  highway?  There  is  no  statute 
which  gives  it  that  effect,  and  according  to  the  common 
law  the  street  leaped  from  the  ground  to  the  do«k  and 
staid  there.  It  is  there  now  unless  it  has  been  abandoned 
by  nonuser  as  we  read  the  authorities.  *  *  * 

When  a  private  dock  is  built  over  a  public  street  upon 
the  shore  of  navigable  waters,  the  dock  becomes  part  of  the 
street  and  the  public  has  a  right  to  travel  over  it.  Owner- 
ship of  the  dock  is  not  inconsistent  with  the  existence  of 
the  street  any  more  than  ownership  of  the  land  over  which 
the  street  extended.  Assimiing  that  the  defendant  or  its 
predecessors  could  lawfully  build  a  dock  over  their  own 
land  in  order  to  reach  the  river,  still,  as  their  land  was 


844  Trial  Peactice  [Chap.  18 

subject  to  the  right  of  the  public  to  travel  upon  it,  they 
could  not  unreasonably  interfere  with  that  right  nor  witli 
the  existence  of  the  street  which  was  the  foundation  there- 
of. Two  rights  co-existed.  The  defendant,  as  owner  of 
the  river  front,  had  the  right  to  reach  the  water.  As  there 
was  a  street  along  the  river  front  over  the  defendant's  land 
the  public  had  the  right  to  use  the  street.  The  building 
of  the  dock  changed  neither  right.  Both  continued  to  exist, 
although  under  changed  conditions.  They  met  but  did  not 
merge,  nor  did  either  destroy  the  other.  The  defendant 
had  the  right  to  use  its  dock,  as  a  private  dock,  subject  to 
the  right  of  the  public  to  travel  over  it,  as  they  had  pre\d- 
ously  traveled  upon  the  land  over  which  it^  was  built.  The 
city  had  no  right  to  use  the  dock  for  dock  purposes,  but 
its  citizens  had  the  right  to  use  it  for  street  purposes.  While 
the  street  followed  the  dock,  and  covered  the  whole  of  it, 
that  did  not  authorize  the  city  to  collect  wharfage;  and 
although  the  dock  was  private  property  the  same  as  the 
land  beneath  it,  that  did  not  authorize  the  defendant  to 
prevent  the  public  from  using  it  for  the  same  purpose  that 
they  had  previously  used  the  land.  The  easement  for 
travel  still  existed,  but  it  was  over  the  dock  which  took 
the  place  of  the  land  constituting  the  street.  The  public 
had  the  right  to  travel  in  the  same  place  and  in  the  same 
direction  that  they  had  before,  but  instead  of  traveling 
upon  the  surface  of  the  land,  they  were  obliged  to  travel 
and  had  the  right  to  travel  upon  the  structure  that  the  de- 
fendant had  placed  on  the  land.  That  structure  became  a 
street  for  the  purpose  of  travel  and  a  private  dock  for 
use  as  such,  with  a  superior  right  in  the  public  in  case  of 

conflict  through  reasonable  use  of  the  respective  rights. 

********** 

We  have  thus  laid  down  the  law  applicable  to  the  facts 
as  found  independent  of  the  fact  appearing  in  the  third 
conclusion  of  law.  It  is  clear  that  the  latter,  treated  as  a 
finding  of  fact  that  Front  street  had  not  been  traveled  or 
used  as  a  public  highway  for  more  than  six  years,  is  in- 
consistent with  the  eighteenth  finding  of  fact  that  the  pub- 
lic used  the  dock  continuously  from  the  time  it  was  built, 
both  for  foot  and  vehicle  traffic,  as  a  way  of  communication 
between  Main  street  and  points  east  of  Washington  street. 
The  learned  trial  justice  evidently  regarded  the  street  as 


Chap.  18]     Trial  and  Finding  by  the  Court  845 

no  longer  in  existence  after  the  dock  was  built,  and  hence 
found  that  travel  had  ceased  upon  the  street,  although  he 
found  that  it  continued  upon  the  dock  which  took  the  place 
of  the  street.  He  may  thus  have  been  misled  into  making 
the  inconsistent  findings. 

**  While  an  appellate  court  should  harmonize  inconsistent 
findings  when  it  is  possible  to  do  so,  if  they  prove  irrecon- 
cilable it  is  the  duty  of  the  court  to  accept  those  most  fav- 
orable to  the  appellant,  and  he  is  entitled  to  rely  upon 
them  in  aid  of  his  exceptions."  {Israel  v.  Manhattan  Ry.  \\ 
Co.,  158  N.  Y.  624,  631 ;  Nickell  v.  Tracy,  184  N.  Y.  386. 
390.)  The  finding  that  the  street  has  been  abandoned  can- 
not be  reconciled,  according  to  our  view  of  the  law,  with 
the  finding  that  the  dock  has  been  used  and  traveled  upon 
continuously  as  a  street.  We  are,  therefore,  compelled  to 
reject  the  former  and  to  accept  the  latter,  with  the  same 
force  and  effect  as  if  it  was  the  only  finding  upon  the  sub- 
ject appearing  in  the  decision.  This  leaves  the  conclusion 
of  law  that  the  defendant  is  entitled  to  the  exclusive  use, 
possession  and  occupancy  of  Front  street,  and  that  the 
plaintiff  is  not  possessed  of  any  right,  title  or  interest 
therein,  without  any  finding  to  support  it.  The  exception 
to  this  conclusion  of  law,  as  well  as  to  the  direction  for 
judgment  against  the  plaintiff,  raised  reversible  error  and 
requires  us  to  reverse  the  judgment  appealed  from  and  to 
order  a  new  trial,  with  costs  to  abide  the  event. 

CuLLEN,  Ch.  J.,  Gray,  O'Brien,  Werxee.  Wh.lard  Bart- 
LETT  and  Chase,  JJ.,  concur. 

Judgment  reversed,  Etc, 


Table  of  Cases. 


Page 

Aaron  v.  Missouri  &  Kan.  Teleph.  Co.  (1911)  84  Kan.  117 3b9 

Altschuler  V.   Coburn    (1894)    38   Neb.   881 467 

Ambler  v.  Leach   (1879)   15  W.  Va.  677 17 

Anderson  v.  First  Nat.  Bank  of  Grand  Forks  (1895)  5  N.  D.  80 '.  771 

Armstrong  v.   Whitehead    (1902)    81   Miss.  35 617 

Ashmead  v.  Ashmead   (ISSO)   23  Kan.  282 323 

Atchison,  Topeka  &  S.  Fe  E.  K.  Co.  v.  Ayers  (1895)  56  Kan.  176 *. ".  547 

Atchison,  Topeka  &  S.  Fe  *E.  E.  Co.  v.  Woodson   (1909)   79  Kan.  567...  373 

Bailey   v.   Drake    (1895)    12    Wash.    99 776 

Baker  v.  Brown   (1909)    151  N.  C.   12 *  650 

Baker  v.  Summers    (1903)   201  111.  52 372 

Baldwin's  Appeal  from  Probate   (1876)    44  Conn.  37 488 

Barry  v.  Wachosky   ( 1899)   C  Neb.  535 73 

Barwick  v.  Eouse   (1907)    53  Fla.  645 44 

Baxter  v.  Chicago  &  Northwestern  Ey.  Co.    (1899)    104  Wis.  307 572 

Bean  v.  Missoula  Lumber  Co.    (1909)    40  Mont.  31 163 

Belknap  v.  Charlton   (1893)   25  Ore.  41 101 

Bennett  v.   Perkins    (1900)    47   W.  Va.   425 293 

iiertschy  v.  McLeod   (1873)   32  Wis.  205 302 

Bewick  V.   Muir    (1890)    83   Cal.   368 9 

Blake  v.  Ehode  Island  Company    (1911)   32  E.  I.  213 715 

Boarman  v.  Hinckley   (1897)    17  Wash.   126 770 

Boggs  V.  Inter-American  Mining  and  Smelting  Co.   (1907)   105  Md.  371  41 

Bopp.  V.  New  York  Elec.   Vehicle  Trausp.  Co.   (1903)   177  N.  Y.  33 33-i 

Bottineac  Land  &  Loan  Co.  v.  Hintze    (1911)    150  la.  646 744 

Boyce  v.  Chicago  &  Alton  Ed.  Co.   (1906)  120  Mo.  App.  168 426 

Brooks  V.  Nevada  Nickel  Syndicate   (1898)    24  Nev.  311 1 

Brooks  V.  San  Francisco  &  North  Pac.  Ey.  Co.   (1895)   110  Cal.  173 758 

Brown  v.  Abilene  Nat.  Bank   (1888)    70  Tex.  250 166 

Brown  v.  Swineford    (1878)    44  Wis.   282 497 

Brown  v.  Wheeler   (1901)   62  Kan.  676 712 

Bull  V.  Matthews   (1897)    20  E.  I.  100 589 

Buttram   v.   Jackson    (1861)    32    Ga.   409 385 

Buyken  v.  Lewis  Construction  Co.    U909)   51  Wash.  627 415 

Buzzell  V.  Snell   (1852)   25  N.  H.  474 245 

Cahill  V.  Chicago,  M.  &  St.  P.  Ey.  Co.   (1896)  20  C.  C.  A.  184 358 

Caldwell  v.  Wells  (1909)   16  Ida.  459 615 

Cameron  v.  Wentworth    (1899)    23   Mont.   70 482 

Campbell  v.  Dreher   (1908)   33  Ky.  L.  E.  444 360 

Campbell  v.   Maher    (1885)    105   Ind.   383 517 

Capital  City  Bank  v.  Wakefield   (1891)   83  la.  46 536 

Carlton  v.  Darcy    (1878)    75   N.    Y.   375 , 305 

Carpenter  &  Sons  Company  v.  New  York,  New  Haven  &  Hartford  E.  E. 

Co.    (1903)    184   Mass.    98 307 

Carroll  v.  Grande  Eonde  Elec.  Co.   (1907)   49  Ore.  477 322 

Central   Eailroad   v.   Harris    (1886)    76  Ga.   501 449 

Chesapeake  &  Ohio  Ev.  Co.  v.  Stock    (1905)    104  Va.  97 459 

Chicago  &  Alton  E.  E.  Co.  v.  Clausen  (1898)    173  111.  100 594 

Chicago  &  Alton  E.  E.  Co.  v.   Gore    (1903)    202   111.   188 535 

Chicago  &  Alton  E.  E.  Co.  v.  Harrington   (1901)   192  111.  9 541 

Chicago  &  Alton  E.  E.  Co.  v.  Kelly   (1904)  210  111.  449 . . .  479 

847 


848  TABLE  OF  CASES. 

Page 

Chicago  &  Eastern  111.  Rd.  Co.  v,  Stewart   (1903)    203  111.  223 718 

Chicago  &  N.  W,  Ry.  Co.  v.  Dunleavy   (1889)   129  111.   132 521 

Chicago  City  Ry.   Co.  v.   Sandusky    (1902)    198  111.   400 !  455 

Choate  v.  Spencer    (1893)    13   Mont.   127 "  13 

Cieerello  v.  Chesapeake  &  Ohio  Ry.  Co.  (,1909)  65  W.  Va,  439...!!!..  167 
Cincinnati,  Indianapolis,  St.  L.  <&   Chicago  Ry.   Co.   v.   Case    (1889)    122 

Ind.   316 604 

City  of  Buffalo  v.  Delaware,  Lackawanna  &  Westein  R.  R.  Co.    (1907) 

190   N.   Y.   84 841 

City  of  Chicago  v.  Moore   (1891)    139  111.  201 441 

City  of  Owensboro  v.  Wier    (1893)   95  Ky.   158 838 

City  of  St.  Joseph  v.  Robisvin  (1894)  125  Mo.  1 775 

Cleveland,  Columbus,  Cincinnati  &  Indianapolis  Ry.  Co.  v.  Asbury  (1889) 

120    Ind.    289 .549 

Cline  V.  Lindsey  (1886)   110  Ind.  337 470 

Cobb  V.  Wm.   Kenefick  Company    (1909)    23   Okla.   440 275 

Coffer  V.  Erickson    (1911)   61  Wash.  559 723 

Coffeyville  Vitrified  Brick  Co.  v.  Zimmerman   (19U0)   61  Kan.  750 538 

Cohen  v.  Krulewitch   (1902)    77  N.   Y.  App.  Div.   126 761 

Commonwealth  v.  Barry   (1864)   9  Allen    (Mass.)    276 400 

Copeland  v.  New  England  Ins.  Co.   (1839)   22  Pick   (Mass.)    135 281 

Corbett  v.  Physicians'  Casualty  Ass'n   (1908)   135  Wis.  505 140 

Corley  v.  New  York  &  Harlem  Rd.  Co.   (1896)   12  N.  Y.  App.  Div.  409.  .  657 

Coughlin  V.   People    (1893)    144  111.    140 225 

Crabtree  v.  Reed   (1869)    50  111.  206 466 

Craig  &  Co.  v.  Pierson  Lumber  Co.   (1910)   169  Ala.  548 648 

Crosby  v.  Farmer   (1888)   39  Minn.  305 87 

Cruikshank  v.  St.  Paul  Fire  &  Marine  Ins.  Co.   (1899)   75  Minn.  266 582 

Danville,  etc.,  R.  R.  Co.  v.  Rhodes   (1897)   180  Pa.  St.  157 149 

Darcey  v.  Farmers'  Lumber  Co.   (1894)   87  Wis.  245 570 

Darling  v.  Miles   (1911)   57  Ore.  593 831 

D'Autremont  v.  Anderson  Iron  Co.   (1908)   104  Minn.  165 52 

Devine  v.  Fed.  Life  Ins.  Co.  (1911)  250  111.  203 557 

Diddle  v.  Continental  Casualty  Co.  (1909)  65  W.  Va.  170 378 

Douda  V.  Chicago,  R.  I.  &  P.  Ry.  Co.   (1909)   141  la.  82 413 

Drake  v.  Justice  Gold  Mining  Co.   (1904)   32  Colo.  259 560 

Draper  v.  Taylor   (1899)   58  Neb.  787 801 

Dubcich  V.  Grand  Lodge  Ancient  Order  of  United  Workmen    (1903)   33 

Wash.    651 621 

Eggleston  v.    Wattawa    (1902)    117   la.   676 2 

Eldred  v.   Bank    (1873)    17   Wall.    (U.   S.)    545 142 

Ellis  V.  Martin  Automobile  Co.  (1909)  77  N.  J.  L.  339 735 

Elmen  v.  C.  B.  &  Q.  R.  R.  Co.   (1905)  75  Neb.  37 24 

Empire  State  Cattle  Co.  v.  Atch.  T.  &  S.  F.  Ry.  Co.  (1907)  210  U.  S.  1.  .  348 
Evansville  &  Southern  Traction  Co.  v.   Spiegel    (1911)   —  Ind.  App. — ; 

94   N.   E.   718 555 

Ferguson   v.    Ingle    (1900)    38    Ore.    43 321 

Fertig  v.  State   (1898)    100  Wis.  301 504 

Fifer  v.  Ritter   (1902)   159  Ind.  8 478 

First  National  Bank  v.   Peck    (1871)    8   Kan.   660 564 

Fisher  Sons  &  Go.  v.  Crowley   (1906)   57  W.  Va.  312 135 

Fitzpatrick  v.   Harris    (1855)    16   B.   Mon.    (Ky.)    561 633 

Flesher  v.  Hale   (1883)    22  W.  Va.  44 652 

Florence,  El  Dorado  &  Walnut  Valley  Rd.  Co.  v.  Ward   (1883)   29  Kan. 

354     641 

Floyd  V.  Colo.  Fuel  &  Iron  Co.  (1897)  10  Colo.  App.  54 578 

Fort  Wayne  &  Belle  Isle  Ry.  Co.  v.  Wayne  Circuit  Judge    (1896)    110 

Mich.  173 746 

Fosdick  V.  Van  Arsdalr  (1889)  74  Mich.  302 262 


TABLE  OF  CASES.  849 

Fowler  v.  Towle   (1870)  49  N.  H.  507 820 

Francisco  v.  Chicago  &  Alton  R.  R.  Co.  (1906)  79  C.  C.  A.  292 315 

Fritz  V.  Clark  ( 1881 )   SO  Ind.  591 290 

Fulton  V.  Ramsey   (1910)   67  W.  Va.  321 105 

Gaines  &  Co.  v.  Whyte  Grocery,  Fruit  &  Wine  Co.  (1904)  107  Mo.  App. 

507    839 

Galveston,  Harrisburg  &  San  Antonio  Ry.  Co.  v.  Templeton  (1894)  87 

Tex.  42   288 

Gardner  v.  Meeker  (1897)  169  111.  40 253 

German  v.  Maquoketa  Savings  Bk.    (1874)   38  Iowa  368 710 

German-American  Ins.  Co.  v.  Harper  (1902)  70  Ark.  305 507 

Gila  Valley,  Globe  &  Northern  Ry.  Co.  v.  Hall  (1911)  13  Ariz.  270 765 

Giles  V.  Giles   (1910)   204  Mass.  383 346 

Goff  V.  Kokomo  Brass  Works  ( 1908 )  43  Ind.  App.  642 215 

Gotzian  v.  McCuUum  (1896)  8  S.  D.  186 670 

Graham  v.  Consolidated  Traction  Co.  (1900)  65  N.  J.  L.  539 689 

Graham  v.  State  ex  rel.  Board  of  Commissioners  (1879)  66  Ind.  386..  836 

Gray  v.  Commonwealth  (1895)  92  Va.  772 586 

Greenleaf  v.  Peoples  Bank  ( 1903 )  133  N.  C.  292 95 

Greer  v.  Young  (1887)  120  111.  184 116 

Griffin  v.  O'Neil  (1891)  47  Kan.  116 661 

Gunn  V.  Union  Rd.  Co.  (1901)  23  R.  I.  289 607 

Gustafson  v.  Seattle  Traction  Co.  (1902)  28  Wash.  227 474 

Hamilton  v.  Wright   (1868)  37  New  York  502 146 

Hansell-Elcock  Foundry  Co.  v.  Clark  (1905)  214  111.  399 519 

Hansen  v.  Fish   ( 1871 )   27  Wis.  535 768 

Hanson  v.  Kline   ( 1907 )    136  la.  101 408 

Harness  v.  Oraveas    (1894)    126  Mo.   233 46 

Harrington  v.  Manchester  &  Lawrence  Rd.   (1882)  62  N.  H.  77 623 

Harrison  v.  Sutter  St.  Ry.  Co.  (1897)  116  Cal.  156 685 

Hartford  Fire  Ins.  Co.  v.  Hammond   (1907)   41  Colo.  323 165 

Hayes  v.  Ionia  Circuit  Judge  (1900)  125  Mich.  277 777 

Hellman  v.  Adler  &  Sons  Clothing  Co.   (1900)   60  Neb.  580 780 

Hensley  v.  Davidson  Bros.  Co.  (1907)  135  la.  106 747 

Herz  V.  Frank   ( 1898 )   104  Ga.  638 782 

Higgins  V.  Wren  (1900)  79  Minn.  462 476 

Hill  V.  McKay  (1907)  36  Mont.  440 672 

Hoover  v.  Horn  (1909)  45  Colo.  288 277 

Hopkins  v.  Railroad   (1895)   96  Tenn.  409 296 

Hoskins  v.  Hight    (1891)   95  Ala.  284 666 

Hubbard  v.  Rutland  R.  R.  Co.  (1908)  80  Vt.  462 587 

Illinois  Cent.  R.  R.  Co.  v.  Johnson  (1906)  221  111.  42 381 

Ins.  Trust  &  Ageocy  v.  Failing  (1903)  66  Kan.  336 144 

Jacksonville,  Tampa  &  Key  West  Ry.  Co.  v.  Neff  (1891)  28  Fla.  373. .  404 

Jaffe  V.  LilienThal  (1894)  101  Cal.  175 175 

Jewel  V.  Blandford  (1838)  7  Dana  472 605 

Johns  V.  Hodges   (1883)    60  Md.  215 631 

Johnson  v.  Josephs  ( 1884 )   75  Me.  544 243 

Jones  V.  Bibb  Brick  Co.  (1904)  120  Ga.  321 76 

Karrer  v.  City  of  Detroit  (1905)  142  Mich.  331 417 

Kauffman  v.  Maier  ( 1892 )  94  Cal.  269 463 

Keller  v.  Stevens   (1886)   66  Md.  132 598 

Kennedy  v.  Lamb  (1905)  182  N.  Y.  228 64 

King  v.  Gilson    (1907)    206  Mo.  264 795 

Kleutsch  V.  Security  Mutual  Life  Ins.  Co.  (1904)  72  Neb.  75 394 

Klofski  V.  Railroad  Supply  Co.  ( 1908)   235  111.  146 444 

Knights  of  Pythias  v.  Steele  ( 1901 )  107  Tenn.  1 635 

Krakower  V.  Davis  (1897)  20  Misc.  (N.  Y.)  350 772 

T.  P.— 54 


850  TABLE  OF  CASES. 

Krotter  &  Co.  v.  Norton  (1909)   84  Neb.  137 39 

Kumli  V.  Southern  Pacific  Co.   (1892)   21  Ore.  505 197 

Lake  Ontario  Nat.  Bank  v.  Judson  (1890)   122  N.  Y.  278 250 

Layman  v.  Minneapolis  St.  Ry.  Co.  (1896)  66  Minn.  452 713 

Lawyer  Land  Co.  v.  Steel  (1906 )  41  Wasli.  411 7 

Lee  V.  Conran  '(1908)   213  Mo.  404 181 

Life  Ins.  Co.  of  Va.  v.  Hairston  (1908)  108  Va.  832 428 

Lindley  v.  Atchison,  T.  &  S.  F.  Rd.  Co.  (1891)  47  Kan.  432 270 

Linton  v.  Heye  (1903)  69  Neb.  450 130 

Loftus  V.  Metropolitan  St.  Ry.  Co.    (1909)    220  Mo.  470 751 

Louisville,  Henderson  &  St.  Louis  Ry.  Co.  v.  Schwab  (1907)  127  Ky.  82  188 

Louisville  Home  Tel.  Co.  v.  Beeler's  Adm'x  (1907)  125  Ky.  366 126 

Louisville,  New  Albany  &  Chicago  Ry.  Co.  v.  Worley  (1886)  107  Ind.  320  539 

Louisville  &  Nashville  Rd.  Co.  v.  Reaume  (1908)  32  Ky.  L.  R.  946..  490 

Lowe  V.  Morris  (1853)  13  Ga.  147 11 

Lyman  v.  Milton   (1872)   44  Cal.  632 4 

Lynch  v.  Snead  Architectural  Iron  Works  (1904)  132  Ky.  241 697 

McBride  v.  Des  Moines  City  Ry.  Co.  (1907)  134  la.  398 422 

McCarthy  v.  Spring  Valley  Coal  Co.  (1908)  232  111.  473 495 

McDivitt  v.  Des  Moines  City  Ry.  Co.  (1909)  141  la.  689 446 

McDonald  v.  Metropolitan  St.  Ry.  Co.   (1901)  167  N.  Y.  66 343 

McDonald  v.  State   (1909)    172  Ind.  393 230 

McKenzie  v.  Boynton  (1910)   19  N.  D.  531 38 

McLean  v.  Erie  Rd.  Co.  (1903)   69  N.  J.  L.  57 469 

Mattox  V.  United  States   (1892)   146  U.  S.  140 811 

Maund  v.  Loeb  (1888)   87  Ala.  374 180 

Mehnert  v.  Thieme  (1875)  15  Kan.  368 659 

Memphis  St.  Ry.  Co.  v.  Johnson   (1905)   114  Tenn.  632 791 

Meyer  v.  Houck   (1892)   85  la.  319 338 

Mitchell  V.  Town  of  Fond  du  Lac  (1871)  61  111.  174 375 

Moore  v.  Chicago,  St.  L.  &  New  Orleans  Rd.  Co.  (1881)  59  Miss.  243. .  720 

Morgan  v.  Mulhall  (1908)  214  Mo.  451 452 

Murphy  v.  Central  of  Georgia  Ry.  Co.   (1910)  135  Ga.  194 430 

Murphy's  Executor  v.  Hoagland  (1908)  32  Ky.  L.  R.  839 509 

North  Center  Creek  Mining  &  Smelting  Co.  v.  Eakins  (1880)  23  Kan.  317  756 

Nellums  v.  Nashville   (1900)   106  Tenn.  222 677 

Nelson  v.  C.  B.  &  Q.  R.  R.  Co.   (1906)  225  111.  197 59 

Neosho  Valley  Investment  Co.  v.  Cornell  (1899)  60  Kan.  282 123 

Newman  v.  Perrill   (1880)   73  Ind.  153 597 

New  York  Firemen  Ins.  Co.  v.  Walden  (1815)  12  Johns  (N.  Y.)  513..  387 

Nicholson  r.  Metcalf  (1904)  31  Mont.  276 721 


Oberlander  v.  Fixen  (1900)  129  Cal.  690 732 

Oppenheimer  v.  Elmore  (1899)   109  la.  196 310 

Owensboro  Wagon  Co.  v.  Boling  (1908)  32  Ky.  L.  R.  816 411 

Parker  v.  Marco  (1893)  136  N.  Y.  585 91 

Parker  v.  National  Mut.  Bldg.  &  Loan  Ass'n  (1904)  55  W.  Va.  134 432 

Parsons  v.  Hill  (1900)  15  App.  Cas.  D.  C.  532 28 

Parsons  v.  Lewiston,  Brunswick  &  Bath  St.  Ry.   (1902)   96  Me.  503..  727 

Pelican  Assurance  Co.  v.  Am.  Feed  &  Grocery  Co.  (1909)  122  Tenn.  652  585 

People  V.  Bank  of  San  Luis  Obispo   (1910)  159  Cal.  65 784 

Peterson  v.  Metropolitan  St.  Ry.  Co.   (1908)  211  Mo.  498 155 

Phillips  V.  Rhode  Island  Co.  (1910)  32  R.  I.  16 802 

Pietsch  V.  Pietsch   (1910)   245  111.  454 266 

Pittsburgh,  Cincinnati,  Chicago  &  St.  L.  Ry.  Co.  v.  City  of  Chicago 

(1908)  144  111.  App.  293 591 

Pittsburgh,  Cincinnati,  Chicago  &  St.  L.  Ry.  Co.  v.  Grom  (1911)  142 

Ky.  51 152 

Plunkett  V.  Detroit  Electric  Ry.  Co.  (1905)  140  Mich.  299 577 

Pointer  v.  United  States  (1894)  151  U.  S.  396 220 


TABLE  OF  CASES.  851 

Rahles  v.  J.  Thompson  &  Sons  Mfg.  Co.  (1909)  137  Wis.  506 15S 

Ralnger  v.  Boston  Mut.  Life  Ass'n  (1897)   167  Mass.  109 356 

Rankin  v.  Caldwell  (1908 )  15  Ida.  625 171 

Redding  v.  Puget  Sound  Iron  &  Steel  Works  (1905)  36  Wash.  642 272 

Roggencamp  v.  Dobbs  ( 1884 )   15  Neb.  620 779 

Runyan  v.  Kanawha  Water  &  Light  Co.  (1911)  68  W.  Va.  609 551 

Rutherford  v.  Talent  ( 1886 )  6  Mont.  112 798 

Ryan  v.  Rockford  Ins.  Co.  (1890)  77  Wis.  611 534 

St.  Louis  &  San  Francisco  Rd.  Co.  v.  Werner  (1904)  70  Kan.  190 737 

St.  Louis  &  San  F.  Ry.  Co.  v.  Bricker  (1899)  61  Kan.  224 562 

St.  Louis,  Iron  Mountain  &  Southern  Ry.  v.  Vickers  (1887)  122  U.  S. 

360 392 

San  Miguel  Consolidated  Gold  Mining  Co.  v.  Bonner  (1905)  33  Colo.  207  263 

Schumacher  v.  Crane-Churchill  Co.  (1902)  66  Neb.  440 184 

Scripps  V.  Reilly    ( 1877 )    35  Mich.  371 255 

Scurlock  V.  City  of  Boone   ( 1909 )   142  la.  580 461 

Seaboard  &  Roanoke  R.  R.  Co.  v.  Joyner's  Adm'r  (1895)  92  Va.  354. .  425 

Searle  v.  Roman  Catholic  Bishop  of  Springfield  (1909)  203  Mass.  493.  211 

Series  v.  Series  (1899)  35  Ore.  289 679 

Seward  v.  Cease  (1869)  50  111.  228 789 

Simpson  v.  Budd  (Cal.  1891)  27  Pac.  758 773 

Slayton  v.  Felt  (1905)   40  Wash.  1 833 

Smalley  v.  Rio  Grande  Western  Ry.  Co.  (1908)  34  Utah  423. 325 

Smoot  V.  Judd  (1904)  184  Mo.  508 79 

Southern  Ry.  Co.  v.  Miller  (1909)  217  U.  S.  209 314 

Standard  Cotton  Mills  v.  Cheatham   (1906)    125  Ga.  649 380 

Standard  Sewing  Mach.  Co.  v.  Royal  Ins.  Co.  (1902)  201  Pa.  St.  645. .  566 

State  V.  Cady  (1888)   80  Me.  413 236 

State  V.  Davis   (1888)    31  W.  Va.  390 238 

State  V.  Dick   (1864)   60  N.  C.  440 398 

State  V.  Legg  (1906)  59  W.  Va.  315 439 

State  V.  Mvers   (1906)    198  Mo.  225 227 

State  V.  Phares  (1884)   24  W.  Va.  657 620 

State  V.  Wright  ( 1865 )  53  Me.  328 360 

State  ex  rel.  Henry  W.  Bond  v.  Fisher  (1910)  230  Mo.  325 599 

Stauffer  v.  Reading  (1903)  206  Pa.  St.  479 763 

Staunton  Coal  Co.  v.  Menk  (1902)  197  111.  369 662 

Sternberg  v.  Levy  (1901)  159  Mo.  617 279 

Tathwell  v.  City  of  Cedar  Rapids  (1903)  122  la.  50 691 

Taubert  v.  Taubert  (1908)  103  Minn.  247 420 

Terrapin  v.  Barker  (1910)   26  Okla.  93 161 

Theobald  v.  St.  Louis  Transit  Co.  (1905)  191  Mo.  395 203 

Toledo,  St.  L.  &  W.  Rd.  Co.  v.  Burr  (1910)  82  Ohio  St.  129 501 

Trustees  of  Schools  v.  Yoch   (1908)   133  111.  App.  32 418 

Ullman  v.  State  (1905)  124  Wis.  602 192 

Underwood  v.  Old  Colony  St.  Ry.  Co.  (1910)  31  R.  L  253 645 

United  States  v.  Christensen  (1890)  7  Utah  .26 637 

Usborn  v.  Stephenson   (1899)    36  Ore.  328 177 

Utah  Nat.  Bank  v.  Nel.son  (1910)  —  Utah  — ;  111  Pac.  907 826 

Valerius  v.  Richard    ( 1894 )    57  Minn.  443 739 

Vose  V.  Mayo  (1871)  3  Cliff.  (U.  S.)  484 800 

Wabash  Railroad  Co.  v.  Ray  (1899)   152  Ind.  392 569 

Wabash  Western  Rv.  Co.  v.  Brow  (1896)  164  U.  S.  271 132 

Wagoner  v.  Hazle  fwp.  ( 1906 )  215  Pa.  St.  219 493 

Walker  v.  New  Mex.  &  Pac.  Rd.  Co.  (1S97)   165  U.  S.  .^93 530 

Wall  V.  Chesapeake  &  Ohio  Ry.  Co.  (1899)   37  C.  C.  A.  129 112 

Wallace  v.  United  Electric  Co.   (1905)   211  Pa.  St.  473 69 

Waller  v.  Graves    ( 1850 )    20  Conn.   305 705 

Ward  Y.  Brown   (1903)   53  W.  V^,  227 486 


852  TABLE  OF  CASES. 

Wells  V.  Smith   (1901)   49  W.  Va.  78 241 

West  Kentucky  Coal  Co.  v.  Davis  (1910)  138  Ky.  667 434 

West.  Un.  Tel.  Co.  v.  Chamblee  ( 1898 )  122  Ala.  428 664 

Wharton,  In  re  Estate  of  ( 1907 )  132  la.  714 468 

Whittlesey  v.  Burlington,  Cedar  Rapids  &  Northern  Ry.  Co.   (1903) 

121  la.  597 726 

Wilkinson  v.  The  People  ( 1907 )  226  111.  135 514 

Williams  v.  Brooklyn  Elevated  R.  R.  Co.   (1891)   126  N.  Y.  96 511 

Wilson  V.  Wapello  County   (1905)   129  la.  77 208 

Winchell  v.  Town  of  Camillus  (1905)  109  N.  Y.  App.  Div.  341 376 

Winfleld  Bldg.  &  Loan  Ass'n  v.  McMullen   (1898)   59  Kan.  493 703 

Wolf  V.  Chicago  Sign  Printing  Co.  (1908)  233  111.  501 352 

Wolfgram  v.  Town  of  Schoepke  ( 1904 )  123  Wis.  19 815 

York  v.  Stiles  (1899)  21  R.  L  225 754 


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